1 Monday, 17 March 2014
2 [Rule 98 bis Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.31 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. This is case
10 IT-09-92-T, the Prosecutor versus Ratko Mladic.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 Today we'll hear submissions under Rule 98 bis. Rule 98 bis
14 "At the close of the Prosecutor's case, the Trial Chamber shall,
15 by oral decision and after hearing the oral submissions of the parties,
16 enter a judgement of acquittal on any count if there's no evidence
17 capable of supporting a conviction."
18 The Defence has announced that it wishes to make submissions,
19 oral submissions, under Rule 98 bis and has an opportunity to do so now.
20 Mr. Ivetic, it will be you who will make those submissions?
21 MR. IVETIC: That is correct, Your Honour.
22 JUDGE ORIE: Then you may proceed and I put hereby on the record
23 that Mr. Stojanovic as co-counsel is present in court. Please proceed.
24 MR. IVETIC: Thank you, Your Honour.
25 Good morning, Your Honours. The duty falls upon me to present
1 the Rule 98 bis arguments on behalf of the defence of
2 General Ratko Mladic.
3 At the outset, I want to clarify that nothing in our presentation
4 today or in our choice of topics to be discussed should be interpreted in
5 any way as a concession or admission of any part of the Prosecution's
6 case against General Mladic. Just because I may not address every part
7 of the Prosecution's case does not mean to imply that we believe the
8 evidence they have presented on the same. In fact, we oppose and reject
9 the Prosecution's allegations and the case they have brought in total.
10 Both General Mladic and his Defence team look forward to
11 presenting witnesses and evidence during the Defence case to rebut each
12 untruth and misinterpretation presented during the Prosecution case.
13 General Mladic believes in the truth and that we will be able to present
14 that truth, and that once presented it will demonstrate his innocence.
15 While both he and the Defence are mindful of and respect that during the
16 war regrettable events and even crimes occurred on all warring sides,
17 causing losses, impacting those involved in and touched by the conflict,
18 and our thoughts go out to all those aggrieved. We want to be clear,
19 General Mladic never intended nor ordered any crimes and at all times
20 acted honourably to defend his country and to defend his people.
21 Your Honours, your task at the 98 bis stage is to purge the
22 indictment of allegations that are not supported by evidence upon which
23 you could convict General Mladic. The Defence's submissions are focused
24 accordingly and will be divided into four substantive sections: First, I
25 will address the interpretation and application of Rule 98 bis and
1 advocate that a charge-based approach upholds the object and purpose of
2 the provision; secondly, I will assess the Prosecution's evidence in
3 relation to Jadar River, Sirokaca, and Schedule D of the indictment,
4 destruction of religious sites, and demonstrate that the Prosecution has
5 not proffered any evidence capable of sustaining a conviction on these
6 charges; next I will address third party actors; and finally, genocide.
7 Thus, the Defence will respectfully invite Your Honours to duly
8 acquit General Mladic of these allegations and allow the Defence to focus
9 its resources elsewhere.
10 Rule 98 bis states that:
11 "At the close of the Prosecutor's case, the Trial Chamber shall,
12 by oral decision and after hearing the oral submissions of the parties,
13 enter a judgement of acquittal on any count if there is no evidence
14 capable of supporting a conviction."
15 It is the use of the word "count" that has been latched on to by
16 Trial Chambers to conclude that judgements for acquittals can only be
17 entered in respect of entire counts and not individual charges. A
18 textual interpretation of the rule has been utilised by Trial Chambers to
19 confine itself to this when answering Defence submissions requesting
20 acquittals on individual charges within counts. The application of the
21 rule turns on the interpretation of not only the text, but also the
22 object and purpose of Rule 98 bis in the context of the trial as a whole.
23 In Tadic it was held that even though the Statute is not a
24 treaty, the rules of treaty interpretation contained in the
25 Vienna Convention are relevant to determine its interpretation and
1 application. This is the Tadic decision on Defence motion on
2 jurisdiction, 10 August 1995, paragraph 18. Although the Tribunal Judges
3 do not always mention the Vienna Convention explicitly, the interpretive
4 framework of the convention is used.
5 The Trial Chamber in Delalic confirmed that by having recourse to
6 the approach advocated in this framework "the true purpose and intent of
7 the Statute and the Rules of Procedure and Evidence are discovered." It
8 noted that "it is well settled that an interpretation of the articles of
9 the Statute and provisions of the Rules should begin with resort to the
10 general principles of interpretation codified in Article 31 of the
11 Vienna Convention of the Law of Treaties" and cited a multitude of cases
12 that confirmed this. And this would be the Delalic trial judgement,
13 paragraph 1161. Article 31(1) states that:
14 "A treaty shall be interpreted in good faith in accordance with
15 the ordinary meaning to be given to the terms of the treaty in their
16 context in the light of its object and purpose."
17 A textual interpretation, namely one of strict construction,
18 limits the Chamber to determining whether a case is within the bounds of
19 the intention of the Statute and Rule by the construction of the express
20 language only. Following this, unless the Defence is able to show that
21 the Prosecutor has failed to provide evidence capable of sustaining a
22 conviction in relation to the entire count, then an acquittal will not be
23 entered by the Chamber.
24 However, as the Delalic Trial Chamber emphasised, "the rule of
25 strict construction is not violated by giving the expression its full
1 meaning or the alternative meaning which is more consonant with the
2 legislative intent and best effectuates such intent." This encapsulates
3 the dual-pronged interpretive approach advocated by the
4 Vienna Convention.
5 Article 31(1) of the Vienna Convention emphasises that the
6 textual and purposive approaches are not mutually exclusive interpretive
7 methods, rather interdependent. The textual and the purposive approach
8 are reliant on and responsible for the interpretation of each other.
9 Thus, the word "count" in the 98 bis provision can and should be
10 ascertained with recourse to the intention of the drafters and the
11 purpose of the provision in the context of the trial as a whole without
12 violating the textual interpretation that the present jurisprudence is
13 anchored to.
14 Before the amendments to the rule in 2004, the provision
15 expressly provided for a Trial Chamber to enter a judgement of acquittal
16 where the Chamber found insufficient evidence to sustain a conviction on
17 challenged charges, a point which the Hadzic Trial Chamber acknowledged
18 the other month. The text read as follows:
19 "An accused may file a motion for the entry of judgement of
20 acquittal on one or more offences charged in the indictment."
21 Neither the word "count" or "charge" was used, rather that of
22 "offence." It is accepted that in the 2004 amendment the word "count"
23 was inserted into the Statute and that goes some way to implying that the
24 drafters sought to restrict the application of 98 bis to counts as a
25 whole. However, as the Dragomir Milosevic Chamber highlighted, this
1 interpretation has the potential to render the process "virtually devoid
2 of any practical application at the Tribunal," as it fails to appreciate
3 the multi-layered nature of the indictments and restricts itself to a
4 purely domestic approach of the rule, that would be in the Milosevic --
5 Dragomir Milosevic trial, 3rd May 2007, transcript pages 5641 through
7 The purpose of the rule is two-fold: Firstly, to remove any
8 allegations that cannot be sustained at the earliest opportunity to
9 ensure that the trial is expedited and that the Defence's resources are
10 not squandered; and secondly, to adhere to due process and acquit the
11 accused of allegations that are not supported by evidence.
12 This purpose does not change because the rule has been assumed
13 from domestic law into international law; rather, it should be applied in
14 a manner that acknowledges the complexity of the indictment while
15 adhering to its function at this stage in the proceedings. Anything that
16 remains in the indictment requires the Defence to call evidence and
17 respond to the allegations, while the Chamber must dedicate time to
18 hearing and pronouncing on the evidence.
19 It is simply a waste of precious resources and time to allow
20 charges that do not have a real prospect of success, by virtue of there
21 being no evidence capable of supporting a conviction, to remain in the
22 indictment at this stage. Furthermore, the interests of justice do not
23 limit themselves to victims' justice, but also to the rights of the
24 accused. The Tribunal's slogan may be "bringing war criminals to justice
25 and justice to victims," but the accused is innocent until proven guilty
1 and it follows that if guilt cannot be proved then the accused must be
2 acquitted. This is the premise of Rule 98 bis. The rule is a safety
3 valve that protects the accused and the Defence from unfounded
4 allegations progressing and being the subject of the final judgement.
5 If Trial Chamber's take the count-based approach and restrict the
6 application of Rule 98 bis, then the utility of this valve is lost and
7 with it the protection afforded to the accused that was deliberately
8 incorporated from domestic law and written into the Rules.
9 The Defence recognises that there are many cases that have
10 applied the count-based approach following the amendment on the basis of
11 a textual interpretation of Rule 98 bis. However, just because the
12 jurisprudence has moved in one direction does not mean that it is the one
13 intended by the drafters that adheres to the object and purpose of the
14 rule. It is the textual interpretation of the rule, not the rule itself,
15 that has restricted it to a count-based approach. It is self-evident
16 that the Rule's function is to remove allegations from the indictment
17 that, at the close of the Prosecutor's case, are incapable of sustaining
18 a conviction.
19 The word "offence" in the pre-2004 98 bis provision was
20 interpreted in the jurisprudence as encompassing both counts and charges
21 precisely for this reason. The object and purpose of the rule did not
22 change when the text was amended. Had the drafters used the word
23 "charge" instead of "count," Trial Chambers would undoubtedly have taken
24 a purposive interpretation to the text to ensure that acquittals could be
25 entered on entire counts, as this would conform to the object and purpose
1 the rule seeks to achieve, notwithstanding the literal textual
3 The fact that the jurisprudence was deemed to be settled by the
4 Hadzic Trial Chamber does not redefine the object and purpose of the
5 provision. That Trial Chambers have previously taken a textual
6 interpretation does not mean that taking a purposive interpretation to
7 the word "count," so as to interpret it as including the possibility of
8 an acquittal on individual charges within a count is not tantamount to
9 judicial law making. This approach is not gap-filling, nor is it
10 exceeding the competence of the Trial Chamber. Rather, it is giving
11 effect to the object and purpose of Rule 98 bis in accordance with the
12 rules of interpretation outlined in the Vienna Convention.
13 Should Your Honours conclude that the parameters of the rule
14 remain ambiguous even after it has been interpreted in light of its text
15 and the object and purpose of the provision, then the Defence submits
16 that the interpretation most favourable to the accused should be
17 followed. To this end, Your Honours are urged to have due regard for the
18 principle of in dubio pro reo. The Appeals Chamber in Tadic deferred to
19 this when assessing the ambit of the provisions in the Statute and the
20 Rules and emphasised that "any doubt should be resolved in accordance
21 with the principle in dubio pro reo." This is the decision on
22 appellant's motion for extension of time and admission of additional
23 evidence of 15 October 1998, paragraph 73.
24 Therefore, to take a textual interpretation alone is to create a
25 judicial bulwark against acquittals on individual charges, which is a
1 consequence that is self-evident from the jurisprudence. Not only does
2 this offend the object and purpose of Rule 98 bis, but also the principle
3 of in dubio pro reo, as any doubt as to the ambit of the provision should
4 accord to an interpretation that favours the accused. In relation to the
5 rule, the Defence submits interpretation that favours the accused is the
6 one that allows the ambit of the rule to provide for acquittals on
7 individual charges as distinct from the count as a whole.
8 Your Honours, the count-based approach is one that shrouds
9 individual charges in a legal veil that prevents them from being
10 separated from the count as a whole and, as such, the Defence from
11 challenging charges that are not substantiated by evidence.
12 The imposition of a legal veil is not dissimilar to that taken in
13 company/corporate law, where companies are treated as independent legal
14 entities to prevent litigants from going behind it and recovering from
15 the individuals within it. The corporate veil cloaks the individual and
16 prevents them from being challenged separately in the same way that the
17 count-based approach prevents individual charges from being addressed in
18 isolation of the purposes of 98 bis.
19 What the Defence is advocating is not that this veil be lifted
20 entirely, but that the Chamber, on a case-by-case basis, determine
21 whether there are circumstances that justify the piercing of this veil in
22 accordance with the object and purpose of the provision. To take a
23 blanket approach and reject every challenge made by the Defence to
24 individual charges is not only -- would not only offend the object and
25 purpose of Rule 98 bis, but allows the Prosecution to hide individual
1 charges behind a veil that makes all the charges in a count infallible,
2 even if there is no evidence capable of supporting a conviction. It is
3 for this reason that there are exceptions to the presumption of the
4 inviolability of the corporate veil, to prevent individuals from
5 exploiting the veil to remain outside the reach of the law.
6 The Defence implores the Chamber to acknowledge that exceptions
7 to the count-based approach are essential to uphold the object and
8 purpose of Rule 98 bis. Having a presumption against acquitting an
9 accused of individual charges within a count is one thing, but to remove
10 any opportunity for this to occur goes beyond what is necessary to
11 prevent the danger of an incident-based or piece-meal application of
12 Rule 98 bis.
13 THE INTERPRETER: Interpreter's note: Could the speaker kindly
14 slow down. Thank you.
15 MR. IVETIC: A blanket approach by the Chamber offends the
16 fundamental aspect of the rule's purpose: To give effect to and ensure
17 the accused is tried expeditiously and to uphold the requirements of due
18 process and allows the Prosecution to exploit the count-based approach to
19 disguise the evidentiary defects in their individual allegations. To
20 adjudge and declare that the count-based approach should be applied to
21 the present case in accordance with the jurisprudence is to confirm that
22 98 bis is nothing more than a paper tiger, devoid of any practical
23 application for the Defence by virtue of the fact that Trial Chambers
24 apply an overly-restrictive interpretation of it.
25 Furthermore, we have seen from the medical records proffered in
1 conjunction with this Trial Chamber's order made pursuant to Rule 74 bis
2 that ensuring that the trial is not unduly prolonged is of paramount
3 importance, given General Mladic's health. The latest consolidated
4 report of Dr. Hollander and Dr. Cras noted that "delaying or protracting
5 the course of the trial would be disadvantageous to General Mladic
6 because of advancing age." Your Honours, maintaining charges that have
7 no prospect of success extends the conclusion of the trial and increases
8 the strain on General Mladic unnecessary. If there is no evidence
9 capable of supporting a conviction at this stage, then it follows that
10 the Chamber has a responsibility to the accused to ensure that he is
11 tried expeditiously, particularly in the present circumstances where
12 General Mladic's health is a pivotal concern.
13 Turning to the Defence's submissions in relation to specific
14 charges, we recall that Your Honours are both the triers of law and fact
15 and that issues pertaining to the reliability and credibility of the
16 witnesses are not normally dealt with under Rule 98 bis. However, the
17 Trial Chamber in Kordic and Cerkez emphasised that:
18 "There is one situation in which the Chamber is obliged to
19 consider such matters; it is where the Prosecution's case has completely
20 broken down, either in its own presentation or as a result of such
21 fundamental questions being raised through cross-examination as to the
22 reliability and credibility of witnesses that the Prosecution is left
23 without a case." This is the 6 April 2000 decision on Defence motions
24 for judgement of acquittal, paragraph 28.
25 This represents an exception that draws a distinction between
1 merely weak evidence and that which would render a conviction unsafe if
2 the Chamber were to rely upon it as affirmative evidence of guilt. In
3 this case, the Defence submits that the Prosecutor's case in relation to
4 the incidents at Jadar River and Sirokaca, issues pertaining to the
5 reliability and credibility of witnesses, have left the Prosecutor
6 without a case. In relation to Schedule D of the indictment, destruction
7 of religious sites, the Defence asserts that the evidence presented is so
8 incapable of belief that the Prosecution is, once again, left without a
10 Turning first to the Jadar River.
11 Following the case advanced on Count 2, the evidence tendered in
12 relation to the indictment at the Jadar River, which is Schedule E(1) 1.1
13 of the indictment, taken at its highest cannot support the conclusion
14 that these deaths were the start of the organised summary executions of
15 prisoners by gun-shots in the hands of the VRS, let alone acting under
16 orders of General Mladic. The Prosecutor alleges in the indictment that
17 15 Bosnian men were executed on the bank of the Jadar River as part of an
18 organised killing within Srebrenica.
19 As the Defence will show, the Prosecutor's evidence does not
20 support criminal liability on the part of General Mladic as the only
21 witness's evidence that attests to the Prosecutor's case collapsed under
23 The Prosecution have relied on the witness testimony of protected
24 Witness RM314, who is held out by the Prosecution to be a survivor of the
25 massacre, to prove not only did the executions occur, but that the VRS
1 was responsible for the executions. While the Prosecution cited six
2 witnesses in the pre-trial brief to support this incident, only RM314
3 provided evidence of the events that occurred at Jadar River and provided
4 oral testimony on the 8th and 9th of May 2013.
5 The Prosecutor's case relies solely on RM314 being a survivor of
6 this event and thus an eye-witness that can attest to the ethnicity of
7 the other prisoners, the identity of the perpetrators, and the manner in
8 which the prisoners were executed. However, when subject to
9 cross-examination by the Defence it became apparent that his account was
10 inconsistent, was contradicted by documentary evidence and, as such, his
11 testimony was incapable of belief.
12 RM314's evidence collapsed under cross-examination in key areas
13 and is so unreliable that the Prosecution has failed to provide any
14 evidence capable of supporting a conviction. RM314's oral testimony,
15 firstly, raised doubts as to whether his injuries were sustained and as a
16 result of an attempted execution at the Jadar River, and thus whether he
17 was actually present at the time; secondly, undermined the reliability of
18 his identification of someone who was alleged to be a VRS shooter at the
19 incident; and finally, proved inconsistent on the issue of his status as
20 a civilian at the material point in time.
21 The witness claimed in his written statements given to the
22 Prosecutor and under oath that he sustained gun-shot wounds on the
23 River Jadar as the result of an unsuccessful execution attempt by members
24 of the VRS. He stated that a bullet entered his hip as a result of a
25 gun-shot wound which entered from the right side to the left with the
1 left side of his body being where he sustained the injury. This is at
2 the trial record transcript pages 10861 through 10862. He describes in
3 his statement that he floated in the river to escape.
4 Despite RM314's account of the severity of his injuries, he
5 conceded in his statement that the medical personnel at Tuzla did not
6 consider his wounds to be serious; this is P1435, page 7. Additionally,
7 the medical examination conducted on the free Bosnian Muslim territory on
8 16th July 1995 concluded that his injuries were sustained as a result of
9 an explosive injury, which is evidenced at transcript page 10899 and also
10 Exhibit D282. And therefore, not a gun-shot wound as he stated in his
11 statement and under oath. This diagnosis was proffered by the medical
12 staff that attended to his injuries and the documents contain their
13 expert medical opinion on the cause. That the medical experts who
14 examined and treated RM314 came to this conclusion undermines his account
15 that he was shot at, thereby compromising the Prosecution's case that
16 RM314 was injured as a result of an attempted summary execution at the
17 Jadar River.
18 As the medical evidence is inconsistent with RM314's account of
19 being a survivor of the executions, substantial doubt has been raised as
20 to whether he was even there at the time the incident occurred. RM314
21 revealed that he had provided a statement about how he sustained his
22 injuries to a man that told him he worked with journalists and was
23 wearing a black T-shirt with BH Army insignia; this is at transcript page
24 10879. After questions from Judge Fluegge, RM314 stated that it was
25 because he was forced to do so by the security officer of the infirmary
1 that wore the BH Army insignia. However, no evidence of physical
2 coercion was provided to confirm this account, nor did RM314 provide any
3 statements to the Prosecution about this allegation prior to his
5 JUDGE MOLOTO: May I interrupt, Mr. Ivetic?
6 MR. IVETIC: Yes.
7 JUDGE MOLOTO: When you say he was forced to do so, to do what?
8 MR. IVETIC: Forced to give a different account of how he had
9 been shot in the prior statement, Your Honours.
10 JUDGE ORIE: Since you are interrupted anyhow, Mr. Ivetic, at
11 this moment, you referred to D282 as confirming that the injuries were
12 sustained as a result of an explosive injury.
13 MR. IVETIC: That's correct.
14 JUDGE ORIE: I am just wondering where exactly to find that in
15 this document.
16 MR. IVETIC: That should be the medical records, the Latin
17 diagnosis of the wound or of the injuries contains, I believe, the Latin
18 term "explosivus" --
19 JUDGE ORIE: Let me just have a look because in English
20 translation it says several times "illegible," but perhaps the original
21 then could --
22 MR. IVETIC: I believe it's in the original and it's in Latin. I
23 could have that checked at the break, Your Honours.
24 JUDGE ORIE: I'll check it right away whether the Latin gives us
25 any -- please proceed.
1 MR. IVETIC: Thank you.
2 JUDGE MOLOTO: Just a further clarification. You said he was
3 forced to give a different account of how he was shot -- how he was shot
4 or how he was injured. Your contention is that he was not shot?
5 MR. IVETIC: That is correct. Injured is what I would say. I
6 dont remember what the witness actually said in the transcript section.
7 Could --
8 JUDGE MOLOTO: Could you ascertain what he said?
9 MR. IVETIC: At this point I cannot.
10 JUDGE MOLOTO: Later?
11 MR. IVETIC: Later, yes.
12 At transcript page 10880 through 10882, after questions from
13 Judge Fluegge, it transpired that in the handwritten statement he gave to
14 the journalists and signed to confirm the truthfulness of, was in fact
15 false testimony, as conceded by RM314.
16 When pressed as to why he had written that he was shot in
17 Karakaj, RM314 stated that it was because he was forced to do so by the
18 security officer of the infirmary that wore the BH Army insignia.
19 Furthermore, RM314 also conceded at transcript page 10887 that his
20 statement submitted in Popovic which detailed RM314's account of the
21 incident at Jadar River is riddled with mistakes, despite signing it to
22 confirm its truth and accuracy. The Defence again notes that RM314 is
23 the only witness that can attest to the events that occurred and he has
24 shown a propensity for providing untruthful and inaccurate testimony
25 which in conjunction with the inconsistencies between his recollection of
1 the events that occurred and contradictory medical evidence, discredits
2 the Prosecutor's case and renders his evidence incapable of supporting a
4 Significantly, doubt raised as to his presence at the Jadar River
5 also impacts on his identification of a certain individual perpetrator
6 whose identity was provided in closed session, and in an amended
7 statement in 1999 after being triggered by a vague description made by a
8 third party in 1995. You can find this at transcript page 10901. As
9 RM314's description of the perpetrators was originally limited to them
10 being dressed in camouflage but without any insignia being identified,
11 this identification is the only connection the Prosecution has to link
12 members of the VRS with the commission of these executions. And I urge
13 Your Honours to look at transcript page 10889, lines 1 through 11.
14 The Prosecution noted during the proofing of RM314 that the
15 witness was asked about why he failed to mention this individual in his
16 earlier interviews and statements. The witness indicated that he was not
17 completely sure of his identity at the execution site until well after
18 the events based upon information he received both at the time he was
19 held captive and thereafter, which is detailed at transcript page 10914.
20 The witness confirmed his previous testimony in Popovic which revealed
21 further inconsistencies about the witness's recollection of this person's
22 height, of this person's hair type; that's at transcript page 10915
23 through 10916.
24 It is significant that in this testimony he stated that he knew
25 this individual alleged to be a perpetrator well. But despite this,
1 RM314 was unable to identify him at the material time or even provide an
2 accurate nor consistent description of him. In the absence of this
3 identification evidence, there is nothing to suggest that the VRS was
4 responsible for the shootings, as RM314 states only that the men
5 responsible wore camouflage.
6 Taken at its highest, RM314's identification does not come up to
7 proof as it is not only so incapable of belief that he would not remember
8 someone he knows being there, but also that this evidence only came to
9 mind four years after the incident after hearsay triggered RM314's
11 Both the Prosecution and RM314 rely on his civilian status at the
12 material times to confirm the illegality of the acts that occurred on the
13 Jadar River. RM314's status is relevant in two ways: Firstly, to the
14 Prosecution's case that Bosnian Muslim civilians were unlawfully killed;
15 and secondly, that they were targeted because of their ethnicity, as
16 opposed to them posing a military threat as soldiers.
17 The medical document dated the 16th of July, 1995, D282, from one
18 of RM314's medical examinations lists his profession as being a soldier
19 and performed messenger or courier duties at the Srebrenica PS. The
20 abbreviation OS Srebrenica was used on the document and is taken to stand
21 for the armed forces Srebrenica, which RM314 agreed to; that's transcript
22 page 10896, lines 12 to 22. After receiving medical attention, an
23 official document signed by the medical staff states that he was a part
24 of a military unit and after being discharged from the medical
25 institution, the patient should immediately report to the doctor attached
1 to his military unit, thereby suggesting that the infirmary held the
2 opinion that he was a soldier. You can find this at transcript page
3 10900 to 10901.
4 Despite evidence to the contrary, RM314 insisted he was a courier
5 for the civilian protection, this is transcript page 10896, yet conceded
6 that he failed to correct the infirmary. Although he states that he was
7 simply a courier, when RM314 surrendered he was found with a standard
8 hand-grenade in his possession, the same used by the arsenal of the
9 former JNA with which he served. This is at transcript page 10905,
10 lines 16 through 20. His explanation that he was given it by an
11 acquaintance, not provided with instructions, and had no experience of
12 using is dubious, particularly in light of the fact that he conceded that
13 he served with the JNA and the medical evidence suggesting that he was,
14 in fact, a soldier at the material times. This provides a more
15 believable explanation as to why he was armed with JNA weaponry and in
16 the absence of instructions for its use. The fact that RM314's evidence
17 is so inconsistent on the point undermines not only his reliability and
18 credibility in relation to this, but also in relation to the overall
20 RM314 was the sole witness that supports the Prosecution's case
21 in relation to the Jadar River incident and his evidence does not come to
22 proof. Taken together, the witness's propensity for providing false
23 statements, failure to correct inaccurate statements until pressured
24 under cross-examination, and the existence of official medical evidence
25 that contradicts his case demonstrates that his evidence is incapable of
1 belief. There has been no forensic evidence recovered from the site of
2 the alleged shooting which would support the story of RM314, despite the
3 efforts of the Prosecution investigators. Thus, the Prosecutor is left
4 without a case and an acquittal should be entered. As such, the Defence
5 requests the Jadar River incident be stricken from the indictment to
6 preserve judicial economy and the Defence resources.
7 Turning now to Sirokaca --
8 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock. We would have
9 a break in approximately 3 minutes. Would it be --
10 MR. IVETIC: We can have it now, Your Honours.
11 JUDGE ORIE: Yes, before we take the break, perhaps -- I noticed
12 that on D282 where some quite critical questions were asked to the
13 witness, that nevertheless the English translation, still especially on
14 the vital points, states that it was all illegible. If the Defence or
15 Prosecution could try to seek an agreement on what was legible,
16 especially where the explosive wound is mentioned, because I see the word
17 "explosiva" on the original, where it does not appear on the English
18 translation, that certainly would assist the Chamber in enabling it to
19 better understand the argument made. So if that would be resolved, that
20 would be appreciated.
21 We take a break and we will resume at ten minutes to 11.00.
22 --- Recess taken at 10.29 a.m.
23 --- On resuming at 10.54 a.m.
24 JUDGE ORIE: Mr. Ivetic, you may proceed.
25 MR. IVETIC: Thank you, Your Honours. Before I return to my
1 submission, I would like to address the question by Judge Moloto to get
2 the precise words used by the witness in court, and this is at transcript
3 page 10880, lines 15 through 23:
4 "Judge Fluegge: And you were asked by this person about an event
5 which happened in Karakaj; is that correct?
6 "The witness: [Interpretation] Yes, he asked me where it
7 happened. I wanted to avoid that and I said in Karakaj.
8 "Judge Fluegge: You said 'in Karakaj.' What did you say in
10 "The witness: [Interpretation] He asked me where I was shot and
11 I replied 'in Karakaj' and it is dated 31st of July. I was already in
12 such a psychological state that some things may not be quite correct."
13 JUDGE MOLOTO: Is Karakaj -- what is Karakaj, please?
14 MR. IVETIC: Karakaj is a place, Your Honours. It's another
15 geographic location.
16 JUDGE MOLOTO: That doesn't explain whether he was shot or was
17 injured, whether he was shot or it was an explosion. The question to you
18 was: Was he -- your contention is that he was not shot?
19 MR. IVETIC: Correct.
20 JUDGE MOLOTO: And you said go and find out the correct word that
21 he used about his wounds.
22 MR. IVETIC: And in this section the witness said, "he asked me
23 where I was shot" --
24 JUDGE MOLOTO: Sure.
25 MR. IVETIC: -- "and I replied 'in Karakaj.'" So that is -- in
1 relation to this incident, that is what the witness said in his testimony
2 in this case.
3 JUDGE MOLOTO: Okay. So he contends he was shot. The medical
4 records say it was an explosion?
5 MR. IVETIC: That's the Defence position, yes, Your Honour.
6 JUDGE MOLOTO: Thank you.
7 MR. IVETIC: Turning now to Sirokaca. It is the Prosecution's
8 case that the city of Sarajevo was heavily shelled, damaging and
9 destroying civilian targets, causing the deaths of several civilians and
10 injuring others from on or about 28 May 1992, which forms Schedule G(1)
11 of the indictment. The Prosecution cite supporting evidence from three
12 witnesses who address the shelling of different parts of Sarajevo,
13 including the neighbourhood of Sirokaca. This is annex B, Roman lower
14 case numeral xx, with the contention that Serbian forces were
16 The evidence presented by the Prosecution to this extent is not
17 capable of supporting a conviction, as it fails to prove that the Serbian
18 military strategy was responsible for and had the intention to spread
19 terror amongst the civilian population. It is for the Prosecution to
20 prove: (A) by which side this military action has been authorised
21 against unlawful targets; (B) that within those illegitimate actions
22 there was the intent to target the civilian population in order to
23 terrorise; (C) that the intent to kill civilians existed; (D) that the
24 intent to inflict injuries other than murder existed. Your Honours, that
25 is the requirements as set forth in the Galic case on the motion for
1 judgement of acquittal under Rule 98 bis on behalf of the defendant
2 General Stanislav Galic, 2 September 2002, section 7.
3 In the Prosecution pre-trial brief in public annex B, page lower
4 case Roman numeral xx, the Prosecution has down that there are three
5 witness testimonies which support General Mladic's guilt in relation to
6 Schedule G(1) of the indictment. These witnesses are RM115, RM120, and
7 RM168. Both RM115 and RM120 are protected witnesses that gave evidence
8 before the Chamber on 27 August 2012 and 29 through 30 January 2013
10 However, the sole eye-witness to support the Prosecution's case
11 in relation to Sirokaca is the remaining witness, Fadila Tarcin. While
12 the other two witnesses testify about other areas in Sarajevo, this
13 witness gave evidence about the incident in Sirokaca on 28/29 May 1992
14 via a 92 ter statement and addendum and oral testimony on 2 October 2012.
15 The Prosecution has not called any other survivors who could provide an
16 eye-witness account of the events, any military insiders who could attest
17 to the military strategy and intent of the armies, nor any expert or
18 expert reports that support the Prosecution's contention that the Serb
19 forces were responsible for the attacks in Sirokaca specifically.
20 Recourse to Tarcin's evidence demonstrates that there is a total collapse
21 of the Prosecutor's case and therefore that an acquittal should be
23 The witness's 92 ter evidence does not explicitly attribute the
24 shelling to any particular force. Her written evidence notes a
25 subsequently broadcasted intercepted conversation allegedly featuring
1 General Mladic, but states that she "never linked it to what happened to
2 her," which is page 3, paragraph 12, of her witness statement, which is
3 Exhibit P00281. In the Rule 92 ter addendum, P00282, she states at
4 page 2, paragraph 3, that she heard from locals that the shell that
5 wounded her was fired from Borije, due east of Sirokaca, and that she was
6 able to see where the shell had impacted on her neighbour's house.
7 When subject to cross-examination, Tarcin explained that the
8 impact of the shell on her neighbour's house "was facing downhill, that
9 is to say facing town." That's transcript page 3347 [sic], lines 20
10 through 21. When asked by the Chamber if this meant that the impact was
11 from the direction of the river, from the valley, rather than from
12 uphill, the witness answered in the affirmative at 33 -- transcript
13 page 3347, lines 22 through 25. This evidence stands in direct
14 contradiction to the Prosecution's case that the Serbian forces were
15 responsible for the shelling, as she indicated the directionality of the
16 shelling to have come from within the city, thus indirectly attributing
17 it to the Muslim forces. On this basis, the Prosecution's case in
18 relation to Sirokaca has collapsed, as there is simply no evidence that
19 supports their case and is capable of sustaining a conviction against
20 General Mladic for causing and authorising this shelling that injured
21 Witness Tarcin.
22 With regards to intent, if on the basis of Tarcin's evidence the
23 Prosecutor is unable to prove that Serb forces were responsible for the
24 shelling of Sirokaca, then it cannot show that military action to the end
25 was authorised by the Serbs with the intention of targeting the civilian
1 population. Thus, on the basis of Tarcin's evidence, the Prosecution's
2 case has collapsed in relation to the shelling of Sirokaca and judgement
3 of acquittal should be entered.
4 Your Honours, I will now address the Defence's submission
5 challenging the veracity of the Prosecution's individual charges as to
6 religious sites under the ambit of Rule 98 bis. Under Counts 7 and 8 of
7 the indictment, the Prosecution alleges that destruction of cultural
8 monuments and religious sites is a part of their case against
9 General Mladic --
10 JUDGE ORIE: Mr. Ivetic, in order to avoid any confusion, you
11 were quoting transcript page 3347, unless that's a mistake, the downhill
12 passage, which according to my system should be 3447, so as to avoid
13 anyone later not finding it.
14 MR. IVETIC: Thank you, Your Honour. Your records are much more
15 reliable than mine as I stand here.
16 JUDGE ORIE: Well, we have the same records on our computer.
17 MR. IVETIC: Schedule D of the indictment contains the various
18 municipalities and site locations which are alleged to comprise the
19 Prosecutor's allegations as to destruction of religious sites.
20 We respectfully assert that the Prosecution's case presented at
21 trial has been deficient and has failed to meet even the reduced burden
22 of proof to survive the Rule 98 bis stage. For this reason, the Defence
23 invites the Chamber to throw out this segment of the Prosecution's case
24 at this stage, because its case has completely broken down to the extent
25 that the Prosecution is left without a case. To maintain the charges
1 would be to force the Defence to dedicate precious resources to counter
2 charges that are indefensible on the basis of the evidence proffered.
3 Once again, the Defence reiterates that the purpose of the
4 Rule 98 bis proceedings is to strike out allegations that the Prosecution
5 has failed to adduce any evidence capable of supporting a conviction to
6 ensure due process and expeditiousness and urges Your Honours to keep
7 this at the forefront of your thoughts during the next submission. Of
8 specific relevance to the objections raised by the Defence is the
9 Appeals Chamber judgement in Hadzihasanovic and Kubura at paragraph 51.
10 It was held that the accused's right to a fair trial may be infringed if
11 he is erroneously required to answer the Prosecution's case.
12 I urge Your Honours to take into account that if the goal of
13 these proceedings has been the ascertainment of the truth, the evidence
14 adduced by the Prosecution must be assessed as to the truth it has
15 revealed, and if it is wholly inconsistent with the allegations of guilt
16 in the indictment and the Prosecution pre-trial brief, the relevant
17 charges against General Mladic must be stricken and dismissed at this
18 stage. As such we submit it would be an infringement of General Mladic's
19 fair trial rights if forced to expend resources to defend against the
20 allegations relating to destruction of cultural monuments and sacred
22 I note from the outset that there has been no proof that
23 General Mladic ordered or is criminally liable for the crimes of others
24 as to destruction of sacred and religious sites under any mode of
25 liability. There are a total of 11 municipalities that remain a part of
1 this case. I will focus on the three most glaring examples of how the
2 Prosecution's case has failed to support these allegations. I will
3 address Bijeljina, Kalinovik, and Pale municipalities.
4 Schedule D(1) relates to three locations in Bijeljina
5 municipality, consisting of three mosques. The Prosecution pre-trial
6 brief at annex B, Schedule D, page lowercase Roman xi specifies that for
7 these three mosques the Prosecution's best case cannot even identify any
8 known perpetrators for their destruction. The pre-trial brief identifies
9 two witnesses, RM618 and RM513, and two documents, 65 ter number 03431
10 and 65 ter number 13410, that are meant to support and prove the
11 allegations as to these three sacred sites in Bijeljina.
12 Your Honours, neither of these two documents have been admitted
13 into evidence and thus cannot be relied upon to support this allegation
14 at this stage.
15 RM618, that is the expert report of Andras Riedlmayer. During
16 his in-court examination, Mr. Riedlmayer did not offer any testimony as
17 to these three mosques in Bijeljina. P2513 is the expert report produced
18 by Mr. Riedlmayer. There is an annex to the report which purports to
19 give information about perpetrators of the destruction of sacred sites.
20 There are four entries for Bijeljina, none of them are identified as the
21 three sites that are set forth in the indictment. Incidentally, for the
22 four sites that are referenced, the sole source relied upon by
23 Mr. Riedlmayer is informants' statements and news reports, although only
24 one informant is identified for each.
25 P2503, another expert report of Professor Riedlmayer, likewise
1 has no mention of these three locations in Bijeljina. P2511 is the
2 database offered by Mr. Riedlmayer into evidence. At record number 13 of
3 the same, the Atmacici mosque in Bijeljina, there is no information on
4 the alleged perpetrators of the destruction, nor any particulars as to
5 the date or the manner of the damage being inflicted. The sole source is
6 anonymous hearsay information in the medzlis of the Islamic community.
7 JUDGE MOLOTO: Is the Atmacici mosque one of the three?
8 MR. IVETIC: Yes, it is, Your Honour. To be clear, the three
9 that are listed in the indictment are Atmacici, Janjari and
10 Srednja Trnova.
11 As to the Janjari mosque, this is record 14 of P2511, and again
12 it gives no information as to alleged perpetrators, the manner, and the
13 date of the damage. Indeed, there are two equally anonymous hearsay
14 sources relied on by Riedlmayer, one which states that the mosque was
15 destroyed, whereas the other states that the mosque was in an unfinished
16 state of construction when the war began and was never finished.
17 As to the third location in the indictment for Bijeljina,
18 Srednja Trnova mosque, this is record 15 of P2511, and again there is not
19 sufficient information as to perpetrators or the manner of destruction.
20 In fact, the information is that residents say it was intact when they
21 left and found destroyed when they returned. Again, the source of the
22 information is unknown hearsay declarants as reported by another hearsay
24 In each of these cases, the evidence at best provides not a
25 single eye-witness account that could identify the perpetrators or manner
1 of destruction to prove the allegations in the indictment.
2 The other records pertaining to Bijeljina in Riedlmayer's report
3 cannot be relied upon or reviewed by the Chamber, as they are not
4 specified in either the indictment or the pre-trial brief.
5 RM513 is a protected witness who testified about a wholly
6 different subject, and in their in-court testimony made no reference of
7 these sacred sites or of what happened to them. P1054 under seal is the
8 statement of this individual. Following the guidance of your Chamber and
9 I think it's important for the public to hear, I will talk about what is
10 in the statement without revealing the identity of this witness, so that
11 the public can see what type of evidence is being presented by the
12 Prosecution on this score.
13 Paragraph 77 of this statement makes no specific mention of these
14 particular religious sites set forth in the indictment, but rather states
15 that unnamed sites were destroyed and as to the source says:
16 "This information was spoken about in Bijeljina."
17 Rumour and unknown hearsay, Your Honours, that is the best case
18 this Prosecution has been able to offer as to these three sites from
19 Schedule D(1), bolstered by unsubstantiated accounts of other sites that
20 are not even in the indictment. Is it fair to force an accused to answer
21 such allegations?
22 In the Mrksic Rule 98 bis decision at transcript page 11311
23 through 11312, the Court, relying on the Jelisic Appeals Chamber, stated
24 in essence that the Chamber is required at this stage to assume that the
25 Prosecution's evidence is, and I quote, "entitled to credence unless
1 incapable of belief."
2 "In essence, a Rule 98 bis motion will succeed if there is no
3 evidence supporting a particular count or if the only relevant evidence
4 is so incapable of belief that it could not properly sustain a
5 conviction, even when the evidence is taken at its highest for the
7 Your Honours, I submit the foregoing can be regarded as either
8 not being any evidence or evidence that is incapable of belief.
9 Just the other week the ICC had a judgement issued by the
10 Appeals Chamber in the Bosco Ntaganda case, and I would like to discuss
11 with you the dissenting opinion of Judge Christine Van den Wyngaert, who
12 Your Honours know as she was a former colleague of the Bench of the ICTY.
13 Judge Van den Wyngaert stated:
14 "I am also of the opinion that Pre-Trial Chamber II (hereinafter:
15 'Pre-Trial Chamber') erred in its sole reliance on anonymous hearsay
16 evidence contained in press releases, blog articles, and two UN group of
17 expert reports. Such evidence must be treated with utmost caution in the
18 context of a criminal trial and without considerably more independently
19 verified information cannot, in my view, be safely relied upon to justify
20 the continued detention of Mr. Bosco Ntaganda."
21 Judge Van den Wyngaert continues:
22 "The Internal Criminal Court (hereinafter: 'ICC') and ad hoc
23 tribunals have traditionally employed a flexible approach to the
24 admissibility of evidence, ostensibly a civil law influence within a
25 broadly adversarial system. Rather than systematically rejecting the
1 admissibility of any particular category of evidence, Judges have been
2 afforded broad discretion to balance probative value with prejudicial
3 effect. However, the fact that certain types of evidence, such as
4 anonymous hearsay, are not automatically excluded from the proceedings
5 does not mean that they are therefore safe to rely on. Whether they are
6 or not can only be determined on a case-by-case basis, which, in the case
7 of anonymous hearsay is a difficult task, considering the sources of the
8 information are unknown ... at the ICC too, Pre-Trial and Trial Judges
9 are more and more relegating anonymous hearsay evidence to something
10 which can, at best, potentially corroborate other evidence, rather than
11 as stand-alone source of information that possesses significant probative
12 value per se."
13 Judge Van den Wyngaert concludes:
14 "What I think warrants emphasis, however, is that this more
15 cautious approach to anonymous hearsay evidence is not something that
16 derives from the whim of a number of Judges. Instead, it brings us
17 closer to the standard that always should have been applied when
18 assessing such evidence. Indeed, I'm not aware of any other system of
19 criminal justice, be it national or international, where anonymous
20 hearsay is given any serious probative value, if it is
21 considered/admitted at all. I can think of no good reason why this Court
22 should take a different approach, let alone what could justify basing
23 judicial decisions pertaining to the freedom of individuals on evidence
24 that is inherently fragile and against which the suspect has no
25 meaningful opportunity to defend him or herself."
1 Your Honours, we respectfully submit that the logic behind
2 Judge Van den Wyngaert's words applies equally here to the ICTY, and
3 especially at this stage, and to allegations in the indictment that are
4 not supported by any other evidence save for anonymous or unknown
6 I would now direct Your Honours to Kalinovik. The indictment
7 identifies at Schedule D(6) four mosques in Kalinovik for which the
8 criminal responsibility of General Mladic is asserted.
9 The Prosecution pre-trial brief again is unable to identify any
10 alleged perpetrators, let alone any persons that General Mladic would be
11 responsible for. As to Kalinovik, no documents were identified as
12 supporting this allegation and there are three witnesses:
13 Mr. Riedlmayer, RM035, and RM034. Again, Professor Riedlmayer in court
14 offered no evidence as to these four locations in Kalinovik. P2513, his
15 expert report, as to Kalinovik only has an entry for the Ulog mosque and
16 not the other three. As to the Ulog mosque, it is not specific as to who
17 blew up the mosque, when, or for what purpose, except to say it was done
18 by Serbs and is based according to the information from the
19 Centre for Islamic Studies, again unknown, anonymous hearsay.
20 Looking to P2511, entry 168 is the Ulog mosque and this offers no
21 support for who destroyed it. Entry 169 is the Hotovlje mosque in
22 Kalinovik, and again there is no information contained as to the
23 perpetrators or the manner of destruction that suggests criminal
24 liability. The only sources listed for the scant information are the
25 Muslim community centre archives and an unknown anonymous informant
1 interviewed by the OTP who wanted to remain anonymous for security
3 What is significant, Your Honours, is that this same expert
4 report of Mr. Riedlmayer concludes for entry 169 based on multiple
5 independent sources that there never was any mosque in Kutina village.
6 This is significant because the fourth mosque cited in the indictment for
7 Kalinovik is precisely this non-existent mosque in Kutina. Lest I be
8 accused of getting ahead of myself, the third site in the indictment for
9 Kalinovik is Jesalica mosque, which is not even to be found in the
10 database of Mr. Riedlmayer.
11 So after many years of investigating, the best case the
12 Prosecution can put forth as to Kalinovik is expert evidence which
13 confirms there is no mosque in Kutina at all, damage can be confirmed
14 only to two out of the four mosques as a result of unknown perpetrators,
15 unknown cause, et cetera.
16 Let's now turn to the witnesses. RM034 testified in court on a
17 wholly different topic but was asked in passing about mosques, again very
18 unspecifically. Ms. Bibles at transcript page 1838 through 1839 asks as
20 "Q. Could you tell us whether you're aware of who destroyed the
21 four mosques in Kalinovik?
22 "A. All four mosques in Kalinovik were used before the war
23 except for one of them, the one in Velisi [phoen]. From 1991 to 1995 all
24 three mosques on the territory of the municipality of Kalinovik were
25 torched. The minaret was blown up and the one in the village --
1 "THE INTERPRETER: The interpreter did not catch the village.
2 The name of the village --
3 "The witness: [Interpretation] -- and the one in the
4 neighbouring village was also destroyed.
5 "Judge Orie: One minute, Mr. Hadzic. The question and I would
6 like you to focus your answers on what is asked is: Who destroyed the
7 four mosques. Not about how they were destroyed, but who did it.
8 Whether you have any knowledge about it.
9 "Can you answer that question?
10 "The witness: [Interpretation] I do have an answer. It was done
11 by the Serb army."
12 First of all, there is absolutely no identification of any of the
13 mosques that would tie them to those four listed in the indictment. From
14 expert Riedlmayer we know that one of the four never existed, only two of
15 the four were damaged. The testimony of RM034 is thus incapable of
16 belief on this matter. We have nothing that one would expect to
17 establish the prerequisites for a crime. Again, rumour and anonymous
18 hearsay, evidence incapable of belief.
19 RM035 did not testify in these proceedings, but rather a written
20 statement was presented under Rule 92 bis. His statement contains no
21 mention of mosques, as that has been redacted pursuant to adjudicated
22 fact 746.
23 This adjudicated fact taken from the Krajisnik trial judgement
24 merely states that "the mosques of Kalinovik, namely in Ulog, Hotovlje,
25 Kutina, and Jesalica were destroyed during the war." This adjudicated
1 fact is rebutted by the expert report of Riedlmayer because Kutina mosque
2 didn't ever exist.
3 Surely we have not come to a point where the Defence must mount a
4 defence against a Prosecution case that is based solely on an adjudicated
5 fact, which says nothing specific about the manner of damage or
6 destruction or the perpetrators, and which has been refuted as partly
7 untrue by the only expert to testify thus far. Is that within the spirit
8 and meaning of Rule 98 bis to remove such charges at this time? I would
9 argue that the Chamber should remove the same in accord with the purpose
10 and function of the provision.
11 Let's look at Pale, which in the indictment is Schedule D(10) and
12 for which three mosques are to be charged, Praca, Podvitez, and Bogovici.
13 The Prosecution's pre-trial brief, again at page Roman numeral xi of
14 annex B, Schedule D, is unable to provide any identification of alleged
15 perpetrators. One document, 65 ter number 13410, and three witnesses are
16 identified for the supporting evidence on this charge. Your Honours will
17 not be surprised, since I'm bringing it up, the document in question also
18 was not introduced into evidence in this case. One of the witnesses
19 listed is Professor Riedlmayer. Professor Riedlmayer did not offer
20 substantive testimony in court on these three locations in Pale.
21 P2513, his expert report, likewise does not make reference to any
22 of these three locations. Turning to P2511, the database of
23 Professor Riedlmayer, entry 172 is the Praca mosque. Again, the only
24 source is "according to the records of the Islamic community centre ..."
25 and there is not any information about who caused the damage or for what
1 end or purpose.
2 Podvitez mosque is record 173 in P2511, and again the only source
3 is according to the records of the Islamic community centre, and there is
4 not any information about who caused the damage or for what end or
6 Bogovici mosque is record number 174 in P2511. Again, the only
7 source is the records of the Islamic community centre, and there is not
8 any information about who caused the damage or for what end or purpose.
9 All this is unknown, anonymous hearsay information that does not itself
10 meet the bare minimum to assess criminal liability.
11 Let's look at the witnesses. RM111 who testified at trial was
12 asked in direct examination at transcript page 3148 through 3149 as
14 "Q. And you say in your statement, sir, that you heard after you
15 left the mosques in Pale were destroyed. You referred to the period
16 between July and September 1992. Who controlled Pale at that time?
17 "A. At that time, Pale was under the control of the
18 Serbian Democratic Party."
19 Once again, anonymous hearsay information. This is confirmed in
20 cross-examination at transcript page 3155 that the witness learned all
21 this after the war from unknown others. Again, there is no specification
22 of the perpetrators apart from labelling them as Serb forces.
23 The witness's 92 ter statement P260 at paragraph 79 claims that
24 these mosques were destroyed after the witness left Pale and that the
25 information is "common knowledge" in Pale. Again, rumour and unknown
1 anonymous hearsay.
2 The other witness listed in the Prosecution pre-trial brief for
3 Pale is RM619. Your Honours, RM619 was Ewa Tabeau, the demography expert
4 who offered no evidence as to mosques. So we are left with the evidence
5 that I've already discussed, can barely be called evidence, and surely is
6 not evidence that is capable of belief. Surely it is not the type of
7 case that this Chamber would force the Defence to expend resources to
8 defend against.
9 Your Honours, as our time is limited, I have gone through three
10 of the 11 municipalities in Schedule D and demonstrated the Prosecution
11 case to be deficient as to each. I would ask that you scrutinise the
12 evidence as to each remaining charge and dismiss same if found to be
13 similarly lacking.
14 The Defence has not taken a scatter-gun approach to the charges
15 that it seeks acquittals on simply for the sake of it, rather challenges
16 those that it can show that no evidence capable of supporting a
17 conviction has been proffered by the Prosecution. It is for these types
18 of isolated instances that the charge-based approach is appropriate and
19 the legal veil should be pierced as an exception to the rule, as this
20 approach adheres to the object and purpose of the rule. With this in
21 mind, as the Defence has shown that the Prosecutor has failed to adduce
22 evidence capable of supporting a conviction in relation to the incidents
23 at Jadar River and Sirokaca and Schedule D, it urges the Chamber to enter
24 a judgement of acquittal on these charges to make a clear statement that
25 the allegations that are incapable of sustaining a conviction at this
1 stage will be purged from the indictment to ensure that Defence resources
2 are not squandered, that due process is upheld, and that the Prosecution
3 cannot hide behind a legal veil to surreptitiously push through those
4 allegations for which it has no evidence capable of sustaining a
6 Following the jurisprudence and adhering to the count-based
7 approach renders the provision worthless and the right of the accused to
8 an acquittal at this stage on charges that the Prosecution has failed to
9 substantiate unobtainable. Today Your Honours have the opportunity to
10 make a clear statement that the provision is more than just one that
11 adheres to the rhetoric of a fair trial. To truly bring war criminals to
12 justice, the trial process must be conducted in a manner that preserves
13 and protects the accused's rights. You have the opportunity to
14 demonstrate that the fight against impunity will not be exploited as a
15 slogan to justify interpreting provisions in a manner that curtails the
16 rights of the accused and a crusade for the Prosecution to hide behind
17 when there is simply no evidence.
18 The indictment at paragraph 34 asserts both Article 7(1) JCE and
19 7(3) command superior liability against General Mladic for failing to
20 take necessary and reasonable measures to prevent and punish crimes
21 alleged to have been committed by VRS forces and so-called Serb forces
22 under his effective control. The indictment at paragraph 12 identifies
23 Serb forces as comprised by members of the Bosnian Serb political and
24 governmental organs, and members of the MUP, VRS, JNA, VJ, TO, the
25 Serbian MUP, Serbian and Bosnian Serb paramilitary forces and volunteer
1 units, and local Bosnian Serbs. In essence, this indictment is not
2 levelled merely at General Mladic, but at every single Serb, an objection
3 that the Defence raised at the preliminary stage as to the lack of
4 specificity and notice compliance under the jurisprudence, resulting from
5 the Prosecution's construction.
6 We would remind of the jurisprudence of the ICTR, the Bagambiki
7 case in 2004, which set a high standard of specificity for JCE in
8 indictments. That Chamber made clear that the Prosecutor must specify in
9 the indictment which form of JCE she argues, the purpose of the
10 enterprise, the identity of the co-perpetrators, and how the accused
11 participated in the enterprise; this was in paragraph 34 of the
13 Nevertheless, we are still left with this broad definition. We
14 should now look to the evidence that has been presented to try to whittle
15 down this broad allegation to fit the evidence that has been presented
16 for which a case may go -- for which a case may go forward --
17 JUDGE ORIE: Mr. Ivetic, could I just interrupt you for one
18 second. You referred to paragraph 34 of the indictment, assert --
19 MR. IVETIC: The Bagambiki judgement in 2004, Your Honour, that's
20 ICTR-99-46-T, 25 February 2004.
21 JUDGE ORIE: No, the paragraph before that, the indictment at
22 paragraph 34 asserts both Article 7(1) JCE and 7(3) command superior
23 liability against General Mladic.
24 MR. IVETIC: Yes.
25 JUDGE ORIE: That's the one. I'm wondering, how should we in
1 your view read paragraph 34. Should we read that he failed to take the
2 necessary and reasonable measures to prevent the commission of crimes,
3 which would mean the commission by others, the others committing the
4 crime either under 7(1) or 7(3); or do you read it that paragraph 34 also
5 includes to charge General Mladic with having committed the crimes under
6 7(1) himself, any of the modes of liability of 7(1)?
7 And I'm also looking at Mr. Groome perhaps to see whether he has
8 any explanation in this respect.
9 MR. GROOME: Your Honour, I think the answer is found in the
10 heading of that section, it's clearly limited to 7(3) of the Statute.
11 7(1) liability is discussed throughout the entirety of the indictment.
12 JUDGE ORIE: Yes. So in paragraph 34 the reference to 7(1) is
13 primarily to 7(1) liability of those under the command of General Mladic?
14 Or is it just in addition to repeat in every respect that if it's not
15 7(3) then it certainly is 7(1).
16 MR. GROOME: That's the more correct interpretation, Your Honour.
17 Just so that the record is clear, the 7(1) liability also applies to all
18 of the parties -- I think it was paragraph 12 that Mr. Ivetic referred
19 to, where we defined members of the joint criminal enterprise and the
20 people that he implemented their criminal objectives through.
21 JUDGE ORIE: Okay. That clarifies the matter.
22 MR. IVETIC: And that's how I understood it, Your Honours.
23 JUDGE ORIE: Yes, please proceed.
24 MR. IVETIC: The Office of the Prosecutor -- actually,
25 Your Honours, I think it's time for the break. Is that --
1 JUDGE ORIE: Yes. It is time for the break. We'll take that
3 Mr. Ivetic, could you update us on where you are in terms of
4 time. I do understand that out of the four items you would like to bring
5 to our attention -- have we finished the third and are we now --
6 MR. IVETIC: We're starting on the third right now.
7 JUDGE ORIE: On the third?
8 MR. IVETIC: Yes.
9 JUDGE ORIE: Okay. And do you think you would finish today,
10 which is the --
11 MR. IVETIC: Yes.
12 JUDGE ORIE: As scheduled? That's appreciated.
13 We take the break and we resume at ten minutes past 12.00.
14 --- Recess taken at 11.53 a.m.
15 --- On resuming at 12.11 p.m.
16 JUDGE ORIE: Mr. Ivetic, you may proceed.
17 MR. IVETIC: Thank you, Your Honours.
18 The Office of the Prosecutor has failed to meet its burden in the
19 indictment or during the course of the trial to specifically identify the
20 subordinates over whom it is alleged that General Mladic had effective
21 de jure or de facto control for whom it is alleged they performed
22 criminal acts for which he is supposed to be responsible.
23 In reference to Srebrenica, paragraphs 21 through 22 of the
24 indictment, the so-called Skorpions unit are added to this laundry list
25 of alleged perpetrator actors over whom General Mladic is alleged to have
1 had effective control or for whose acts he is said to incur liability but
2 limited to their involvement in Trnovo.
3 Paragraph 34(A) of the indictment sets forth that General Mladic
4 failed to initiate investigations into credible allegations of crimes by
5 Serb forces under his effective control.
6 But an accused's position of authority cannot lead to an
7 automatic presumption that he or she knew or had reason to know of the
8 crimes for which a conviction is sought. This is from paragraph 313 of
9 the Delalic appeals judgement. The mental element "had reason to know,"
10 as articulated in the Statute, does not automatically imply a duty to
11 obtain information, responsibility can be imposed for deliberately
12 refraining from finding out but not for negligently failing to find out.
13 This is from the Blaskic appeals judgement, paragraph 406. Essentially
14 the Office of the Prosecutor has neither properly pled a sustainable case
15 for the command responsibility element "had reason to know," nor has the
16 evidence established a sustainable case for the same, especially as to
17 non-VRS actors and perpetrators. In this section I ask you at the
18 Rule 98 bis stage to remove the Article 7(1) and 7(3) mode of liability
19 as to charges where the evidence cannot sustain that mode of liability
20 for specific perpetrators.
21 As a preliminary matter, we would point out that there does not
22 appear to have been credible evidence presented by the Prosecution of the
23 involvement of any specified VJ personnel in any of the crimes alleged,
24 let alone evidence of how VJ personnel would be subordinated to
25 General Mladic. As for the other alleged perpetrators, we believe that
1 the Chamber should look at the actual evidence that was presented and
2 appraise whether there is evidence to sustain the burden under
3 Rule 98 bis, demonstrating that actual units of the VRS or under the
4 effective command and control of General Mladic were alleged to have
5 committed crimes for which he is charged or if the evidence is such that
6 other persons, known or unknown, over whom General Mladic did not have
7 effective control are alleged to have committed these crimes according to
8 the evidence.
9 The Prosecution has not adduced any proper evidence that
10 General Mladic issued any criminal orders to individuals who are alleged
11 to have been the perpetrators of the crimes set forth in the indictment.
12 Indeed, as to Srebrenica, Prosecution expert witness Richard Butler
13 confirmed that with respect to July 1995 his research had not come across
14 any document or order from General Mladic specifically ordering the
15 execution of prisoners. This is transcript page 16573 through 16574.
16 It should be recalled that there was only one witness who claimed
17 General Mladic personally participated at one of the sites in Srebrenica,
18 providing cloth to tie the hands of prisoners; that was RM255 at
19 transcript page 1177 through 1178. This is purported to be the
20 16th of July and was evidence that had not been previously stated by the
22 Your Honours, there has been evidence presented in relation to
23 General Mladic's absence from Bosnia from the 14th to the 16th when he
24 was, among other things, participating in meetings with international
25 negotiators and attending a wedding in Belgrade. Indeed the Prosecution
1 has stipulated as to most of that period of time that General Mladic was
2 far from Srebrenica. And indeed during the testimony of RM255 the
3 Prosecution, Mr. McCloskey in fact, said:
4 "Perhaps one thing that may help. I just wanted to be able to
5 tell the Court that it is not the Prosecution's intention to rely on this
6 most recent evidence related to General Mladic or Karadzic. I wanted to
7 bring that out so that you could see that. I think we've asked him --
8 perhaps too much of this witness, but we will not be relying upon that."
9 This was transcript page 1179 through 80, right after the witness
10 testified about this alleged personal involvement of General Mladic. So
11 clearly, Your Honours, this type of evidence is not capable of belief.
12 As to the municipalities there has not been evidence capable of
13 belief that indicates General Mladic ever ordered crimes to be committed.
14 I wish to focus on crimes committed by paramilitaries and others
15 that are not in the VRS. First, I will demonstrate that the evidence
16 supports that General Mladic did not have effective control over them,
17 specifically in relation to Arkan's Tigers and the MUP.
18 In several incidents, either the perpetrators were never
19 identified or were identified as paramilitary or police members. The
20 record demonstrates that General Mladic, early on, 28 July 1992, issued
21 an order, P501 in evidence, calling for the disarmament of
23 This order is critical to show General Mladic's lack of criminal
24 motive and efforts undertaken to try and curb and punish crimes by
25 paramilitaries. This order directs that if intentions of paramilitaries
1 are truly honourable, they should submit themselves to become VRS
2 soldiers subject to control and discipline. For those that have
3 committed crimes, it is said they cannot be taken into the army, but
4 should be disarmed, arrested, and criminal prosecutions started against
5 them. Those that refuse to turn over to army discipline and command but
6 that have not committed crimes are to be arrested and escorted out of the
7 country. It is clear that General Mladic had no hand in the prior
8 actions of these various paramilitaries. Problems effectuating this
9 order are apparent from P5116 dated 17 August 1992, where General Mladic
10 again asks subordinate units why they have not reported on the disarming
11 of paramilitaries pursuant to the aforesaid order.
12 That these groups continued to plague the territory of
13 Republika Srpska beyond the command and control of General Mladic is
14 evidenced by P3095, dated 23 September 1995 with General Mladic
15 complaining to the RS president and the RS police about Arkan's Tigers,
16 considering them a paramilitary that has been operating outside the
17 command of the army and committing crimes, including against loyal
18 Muslims, and asking that the president and police undertake to take
19 action against that group, since it is operating apparently as a member
20 of the MUP police and pursuant to a directive from President Karadzic.
21 Also in evidence we have P5133, dated 26 September 1995, where
22 assistant MUP Minister Kovac and another high-ranking police official
23 seek to meet with General Mladic to resolve "certain problems with regard
24 to the commanding of troops currently under the MUP." Again, from the
25 timing of this document, it is clear who is being talked about.
1 Thereafter we have P5065 dated 19 October 1995, another order
2 coming directly from General Mladic to remove paramilitaries reading as
4 "All paramilitary formations and individuals who refuse
5 subordination in the VRS are to be removed from the territory of the RS
6 by 20 October 1995 at 1200 the latest.
7 "All illegally obtained military technical devices, combat
8 equipment, military and other equipment is to be seized from them and the
9 proper receipts issued to them.
10 "Investigations are to be launched and the proper proceedings
11 initiated for all illegal offences committed, all disciplinary
12 misdemeanours and criminal offences."
13 Again it is clear, not just for Arkan's Tigers but for all
14 paramilitaries, they are not operating with the blessing of
15 General Mladic, nor under his command and control, nor are they
16 undertaking acts intended by General Mladic.
17 Prosecution military expert Theunens testified under oath that
18 Arkan's unit was subordinated to the state security or the DB of the
19 Republic of Serbia. You can find this at transcript page 20683 to 20684.
20 This is corroborated by P3095 which we have just discussed. There has
21 been no evidence suggesting nor establishing by requisite means that
22 General Mladic is the command superior of the Serbian State Security
23 Service of the MUP of Serbia. Accordingly, all charges that have been
24 alleged to be the responsibility of Arkan's Tigers should be dropped from
25 the case at this time as that charge cannot stand.
1 As to other non-VRS actors, it should be recalled that we have in
2 evidence P5052, an order from General Mladic dated 2 July 1992,
3 expressing concern of unauthorised armed persons in uniforms masquerading
4 and operating as if they were officials of the army and police while
5 conducting crimes. This order makes clear the Main Staff only issues
6 written orders, not verbal ones, and that all suspicious units should be
7 checked, while regular units should wear proper uniforms, and that units
8 should prevent such impersonators from engaging in combat unless they
9 pass security checks and submit to be incorporated into the army as
10 regular soldiers.
11 Let's talk about MUP forces themselves. In relation to the
12 events in Srebrenica and indeed municipalities, there has been some
13 evidence presented by the Prosecution that the members of the MUP had
14 been responsible for crimes that are alleged against General Mladic.
15 Some instances that come to mind are the killings in Kravica and the
16 killings at Trnovo.
17 From the foregoing documentation as to paramilitaries, we see
18 that General Mladic did not have effective command and control over these
19 units when the same were operating under the auspices of the MUP. The
20 same result is true for civilian MUP police, once they have finished
21 operating in combat operations.
22 Returning to expert Theunens, this Prosecution expert explained
23 the concept in the SFRY military of "Sadejestvo," or "co-ordinated"
24 action during operations, where two forces operated alongside one another
25 without actual subordination. This is transcript page 20616 through
2 Mr. Theunens further explained the concept of resubordination or
3 reattachment of the MUP to VRS army units for limited purposes;
4 transcript page 20621. Mr. Theunens described that once combat
5 operations are done, the police returns to their police function and
6 their police superiors, and thereafter the VRS army commanders in the
7 region can only thereafter report MUP wrongdoing to the police
8 authorities and the MUP superiors have the responsibility of any further
9 disciplinary or other actions. This is transcript page 20622 through
11 Your Honours, we have seen General Mladic do precisely that in
12 relation to Arkan's unit. He did all that a military leader can do with
13 relation to police personnel not under his authority.
14 We think that under these circumstances the crimes alleged to be
15 committed by MUP members alone, such as Kravica warehouse, must be
16 dismissed from the case as to General Mladic. Indeed, OTP investigator
17 Blaszczyk confirmed the Petrovic video which follows the actions of
18 police units around Srebrenica and part of the scene at Kravica.
19 Mr. Blaszczyk confirmed that General Mladic is not seen anywhere in
20 relation to that video. This is at transcript page 12373.
21 One further thing I would like to point out, the so-called
22 Skorpions group at Trnovo, the infamous video of their killing of six
23 individuals; P2581 is that video. It was played numerous times by the
25 However gruesome the video and however repulsive and
1 reprehensible the actions of these Skorpions, they have nothing to do
2 with General Mladic.
3 OTP investigator Janc testified that Mladic is neither present in
4 any part of the Skorpion video nor is he mentioned by the perpetrators
5 therein as having any role in the killings. This is transcript
6 page 15378.
7 The best testimony before this Chamber that is suited to
8 illuminate the events in Trnovo was very explicit and resounding in
9 clearing General Mladic of any involvement in this crime. The evidence
10 is clear the Skorpion perpetrators never mentioned General Mladic, but
11 rather always were clear their superiors were the Serbian DB and the MUP
12 assistant minister for Serb Krajina. This can be found at transcript
13 reference 18710 through 18711. The evidence as to Trnovo is also clear.
14 The Skorpion unit itself was operating in co-ordinated action as
15 described by Mr. Theunens rather than being resubordinated to the VRS.
16 This is at transcript page 18715 through 18717.
17 The perpetrators from the Skorpions themselves were not engaged
18 in co-ordinated action with the VRS at the time of the crime, but rather
19 were described as body-guards, a driver, a mechanic, and a member of the
20 kitchen staff engaged in personal acts. This is at transcript page 18729
21 through 18730. The evidence is clear these perpetrators have been tried
22 and are serving sentences in Serbia.
23 There is no role of General Mladic in ordering or taking part in
24 these killings in any way. The perpetrators were not subordinated to
25 him, thus he could not discipline them. There has been no evidence of
1 how General Mladic ought to have known of the crimes. Accordingly, this
2 charge should be dismissed.
3 Another topic that I wish to raise at this point is Tomasica,
4 which we have heard the Prosecution claim is a mass grave that Mladic's
5 own notebooks confess culpability in. Respectfully, P358, page 154 in
6 e-court, the notebook cited by the Prosecution in question, does not
7 support the Prosecution's case. In it, Mladic is being told of a police
8 official's comments as to Tomasica. General Mladic makes clear the VRS
9 knows nothing about those bodies, that the police may be trying to pass
10 their own misdeeds to them. General Mladic directs that investigations
11 be carried out as to those bodies. Again, for crimes committed by
12 persons from the police, outside of his effective control, this evidence
13 cannot lead to criminal responsibility for Mladic as the VRS Main Staff
15 Turning to the incident at Schedule A(7.5) of the indictment,
16 Skrljevita, spelled S-k-r-l-j-e-v-i-t-a, one witness was called in
17 relation to the same, Grgo Stojic. Your Honours will recall that during
18 the testimony of this witness, it was revealed that the perpetrators of
19 this crime never once mentioned General Mladic; this is transcript
20 page 4125 through 4126. Further, it was demonstrated by the witness
21 himself that the principal perpetrators of the same were aged 15 and 17
22 years respectively at the time of the commission, which leads to the
23 conclusion they were not VRS soldiers. And that the other alleged
24 perpetrator arrested and prosecuted by the authorities in
25 Republika Srpska could not in fact be identified by this witness. This
1 is at transcript page 4112 through 4120.
2 Indeed, at transcript page 4109 through 4110, the witness
3 confirmed the Banja Luka military court already in November 1992 ordered
4 that all alleged perpetrators be taken into custody for the murder and
5 investigations launched -- for the murder and that investigations be
6 launched, all this shortly after the crime occurred.
7 At transcript page 4110 through -11, the witness confirmed that
8 the military police of the VRS identified the perpetrators, including
9 minors who were outside the army, and conducted an on-site investigation.
10 Exhibit P369 is the indictment that was raised by the military court
11 against the perpetrators, condemning the crime.
12 Your Honours, there is thus no credible evidence of belief that
13 persons subordinated to and under the effective command and control of
14 General Mladic could be said to have committed this crime or that
15 military organs under his control failed to investigate and prosecute the
16 perpetrators. Accordingly, this charge should be dismissed.
17 I have highlighted concrete and clear examples. For the record,
18 the Prosecution case as presented involved paramilitaries or MUP
19 personnel as perpetrators as to the following Schedule A incidents: 3.3,
20 Kljuc; 6.7 and 6.8, Prijedor; 9.1, Vlasenica.
21 The Prosecution evidence fails to particularly identify the
22 perpetrators or differentiate amongst them as to the following incidents
23 from Schedule A: 6.1, Prijedor; 6.5 to 6.6, Prijedor; 6.9, Prijedor;
24 7.3, Sanski Most.
25 The Prosecution case as presented involves paramilitaries or MUP
1 personnel as perpetrators, as to the following Schedule B incidents:
2 1.1, Sanski Most; 1.2, Sanski Most; 10.1 and 10.2, Novi Grad; 13.1 to
3 13.4, Prijedor; 16.2, Vlasenica.
4 Meanwhile, the evidence fails to particularly identify the
5 perpetrators or differentiate them as to the following from Schedule B,
6 2.1, Bijeljina.
7 As to detention centres, the Defence points out that Omarska and
8 Keraterm were police facilities.
9 Based on the evidence presented, the Prosecution case cannot
10 stand as to these charges.
11 General Mladic is reputed to be a key member and/or principal
12 perpetrator in an overarching joint criminal enterprise lasting from
13 October 1991 until 30 November 1995, with the objective to permanently
14 remove Bosnian Muslims and Bosnian Croats from Bosnian Serb acclaimed
15 territory. This is paragraph 5 of the indictment. The indictment sets
16 out an additional but related joint criminal enterprise aimed at
17 eliminating the Bosnian Muslims in Srebrenica and spreading terror among
18 civilians in Sarajevo; this is paragraph 6 of the indictment.
19 General Mladic is alleged to share the intent for the commission of
20 genocide, persecution, extermination, murder, deportations, and forcible
21 transfer with other members of this joint criminal enterprise; this is
22 paragraph 8 of the indictment. Alternatively, General Mladic purportedly
23 could foresee that the crime of genocide might be perpetrated by one or
24 more members of this joint criminal enterprise and willingly took this
25 risk; that's paragraph 9 of the indictment.
1 The Defence challenges the evidentiary base presented by the
2 Prosecution in relation to the mode of liability, a third category of
3 joint criminal enterprise, for purpose of a no-case submission under
4 Rule 98 bis of the Rules of Procedure and Evidence. Our position is that
5 the Prosecution has not presented sufficient evidence to render a
6 conviction supporting the charge that General Mladic shared or intended
7 to further the common purpose of the JCE.
8 The Defence would like to remind Your Honours of the separate and
9 dissenting opinions of Judges Hunt and Bennouna in the Celebici case:
10 "The fundamental function of the criminal law is to punish the
11 accused for his criminal conduct, and only for his criminal conduct. We
12 believe that taking into account abstract elements creates the danger the
13 accused will also be convicted of additional crimes which have a distinct
14 existence only as a purely legal and abstract manner, effectively through
15 the historical accidents of the way in which humanitarian law has
16 developed in streams having distinct contextual requirements. The fact
17 that the articles of the Statute encompass different, although frequently
18 overlapping, crimes is a result mainly of the history of international
19 humanitarian law rather than any indication that they are intended to
20 describe genuinely distinct bodies of criminal law in contemporary
21 international humanitarian law."
22 Before this Tribunal, the Tadic Appeals Chamber stipulated that
23 it is only appropriate to apply the notion of common purpose in relation
24 to a joint criminal enterprise where the following requirements
25 concerning mens rea are fulfilled by the accused: One, the intention to
1 take part in a JCE and to further, individually and jointly, the criminal
2 purpose of this enterprise; and two, the foreseeability of the possible
3 commission by other members of the group of offences that do not
4 constitute the object of the common criminal purpose. That's paragraph
5 220 of the Tadic appeals judgement.
6 With your leave, Your Honours, I will address evidence relating
7 to the requirement that General Mladic willingly entered into the
8 joint criminal enterprise and supposedly shared and furthered the common
9 purpose of the same. Subsequently I will address evidence relating to
10 the requirement that General Mladic could foresee the crime of genocide
11 being committed.
12 We submit that the Prosecution has not shown that the accused
13 willingly entered into the joint criminal enterprise. The mere position
14 General Mladic held within the VRS cannot be used as primary evidence to
15 infer his criminal responsibility, doing so would militate against the
16 principle of personal guilt. Rather than distinguishing between the
17 accused and the specific crimes for which he stands trial, this concept
18 degenerates into a smoke-screen which obscures the frail connection
19 between General Mladic and the acts for which he stands trial. An
20 accused's position of authority cannot lead to an automatic presumption
21 that he or she knew or had reason to know of the crimes for which a
22 conviction is sought. That is again from the Delalic appeals judgement,
23 paragraph 313 and again from Blaskic appeals paragraph 406, the mental
24 element "had reason to know" does not automatically imply a duty to
25 obtain information. Responsibility can be imposed for deliberately
1 refraining from finding out but not for negligently failing to find out.
2 Essentially the OTP has neither properly pled a sustainable case nor has
3 the evidence established a sustainable case for the same.
4 We submit that the Prosecution has not proven that General Mladic
5 agreed or supported the common purpose of the third category of JCE in
6 relation to the crime of genocide. The Defence recognises that the
7 proper scope of JCE III is not completely settled in international
8 criminal law. This is supported by Judge Shahabuddeen's conclusion to
9 his separate opinion in the Brdjanin appeals judgement:
10 "... a physical perpetrator has to be a member of the JCE for a
11 member of the latter to be criminally responsible for a crime perpetrated
12 by the physical perpetrator within the common purpose of the JCE. By
13 predicating the need for an agreement expressive of the intention of the
14 parties, that position respect the essentials of the principle that
15 criminal responsibility is only assigned for one's own conduct ..."
16 An agreement expressive of the intention of the parties, as
17 referenced to by Judge Shahabuddeen, requires the Prosecution to prove
18 that the accused by his acts or acquiescence is part of such a JCE
19 agreement. This is paragraph 4 of Judge Shahabuddeen's dissenting
20 opinion. The Krajisnik Trial Chamber held that persons in a criminal
21 enterprise must have engaged in concerted action; this is the
22 Krajisnik Trial Chamber judgement in paragraph 884 and is also referenced
23 in the Krajisnik Appeals Chamber judgement at paragraph 192 through 194.
24 The Defence recognises that it is established case law before
25 this Tribunal to render convictions under the third category of
1 joint criminal enterprise for specific intent crimes such as genocide.
2 Nevertheless, we would like to give notice to Judge Liu's recent
3 partially dissenting opinion and declaration to the Sainovic appeals
4 judgement. Judge Liu recognised that genocide requires that the
5 perpetrator's intent goes beyond the mere prohibited and that as a
6 consequence the mens rea required for specific intent crimes is
7 incompatible with the standard of advertent recklessness applied to a
8 third category joint criminal enterprise. In the absence of evidence of
9 specific genocidal intent, no conviction of genocide may be entered.
10 Furthermore, Judge Liu finds the words of Antonio Cassese persuasive:
11 "Whoever is liable under the third category of JCE has a distinct
12 mens rea from that of the 'primary offender.' Nevertheless, as the
13 'secondary offender' bears responsibility for the same crime as the
14 primary offender, the 'distance' between the subjective element of the
15 two offenders must not be so dramatic as in the case of crimes requiring
16 specific intent. Otherwise, the crucial notions of 'personal
17 culpability' and 'causation' would be torn to shreds."
18 And indeed a further discussion of this can be found in Cassese's
19 book: "Limits of Individual Criminal Responsibility under the Doctrine
20 of JCE," pages 121 to 122.
21 The Defence submits that in light of Judge Liu's dissenting
22 decision, the Prosecution has not provided enough evidence to point out
23 General Mladic's specific intent and therefore he's entitled to a
24 dismissal of the related charge.
25 Evidence shows General Mladic did not share intent related to any
1 common purpose that has been identified by the Prosecution. Prosecution
2 witness Manojlo Milovanovic in his testimony on 19 September 2013
3 attested to that fact. His testimony pertained to directive 7, a
4 directive issued and signed by the supreme commander, Mr. Karadzic.
5 General Milovanovic explains that unit commanders should not take any
6 measures based on directives from Karadzic which should have been sent to
7 General Mladic instead. In this particular instance, directive 7 was
8 sent to all the corps commands. This was an instance of duality or
9 double lines in the chain of command. Corps commanders should not have
10 reacted to Karadzic's directive before receiving Mladic's orders as a
11 result of the directive.
12 The task assignment to the Drina Corps by General Mladic in
13 directive 7.1 was not taken over from directive 7. The general left two
14 things out in directive 7: The first is the controversial sentence that
15 unbearable conditions have to be created for the civilian population of
16 Zepa and Srebrenica; the second element left out is the sentence
17 referring to the separation of Srebrenica and Zepa by force.
18 General Milovanovic states that the accused exercised personal
19 responsibility when he decided not to pressure the civilian population,
20 and thereby not adopt every element from Karadzic's directive 7. This
21 clearly shows that General Mladic did not share in any nefarious intent
22 that could be attributed as arising out of directive 7.
23 In addition, Exhibit P3095 relating to General Mladic's demand to
24 withdraw Karadzic's authorisation to the paramilitary formation
25 Arkan's Tigers, this evidence shows that the accused did not share any
1 nefarious intent that could be attributed to Karadzic or other alleged
2 JCE members. The demand specifically mentions the arrest and abuse of
3 non-Serbs and requests the MUP to take measures for the crimes they
4 committed and to disarm this formation, which was operating pursuant to
5 authorisation issued by Supreme Commander Karadzic.
6 Your Honours, evidence shows that the accused did not share the
7 intent and common purpose of the joint criminal enterprise to permanently
8 remove Bosnian Muslims and Bosnian Croats from Bosnian Serb acclaimed
9 territory and our position is that the Prosecution has not presented
10 sufficient evidence to the contrary.
11 Furthermore, the Defence would like to remind Your Honours of the
12 difference between commander responsibility liability and liability under
13 the head of a third category JCE, as clarified in the
14 Brdjanin Appeals Chamber and to keep that in mind when deliberating over
15 this evidence.
16 As outlined before, the Defence will now address evidence
17 relating to the requirement that General Mladic could foresee the crime
18 of genocide being committed by other alleged members of the JCE. The
19 Tadic Appeals Chamber stated that everyone in the
20 joint criminal enterprise must have been able to predict this result. It
21 notes that more than negligence is required. The standard applied to the
22 third category of a JCE is that of dolus eventualis. Lack of agreement
23 between the members of the JCE risks that one or more of the perpetrators
24 goes outside of the purview of the common purpose of the enterprise. A
25 JCE warrants a common understanding and mutual attribution of the conduct
1 of the participants and our position is that the JCE doctrine is not the
2 appropriate instrument to sustain a conviction of General Mladic's
3 alleged genocidal intent nor has the Prosecution presented sufficient
4 evidence in this matter. We believe this position to be in line with the
5 reasoning of the Kvocka Appeals Chamber judgement at paragraphs 91
6 through 92.
7 The indictment alleges that General Mladic was aware or could
8 foresee a genocide happening. The Tadic Appeals Chamber dealt with the
9 same matter and stated that "uncertainty in the mind went to the question
10 whether genocide would in fact be committed not to acceptance by him of
11 it (if and when it was committed) as something which he could 'predict'
12 as the 'natural and foreseeable consequence' of the activities of the
13 joint criminal enterprise to which he was a party."
14 It is important for purposes of our 98 bis submission in relation
15 to foreseeability that General Mladic's intent to commit the crime of
16 genocide must be shown to include the specific intent to commit genocide
17 even when he did not know whether or not genocide would be committed. I
18 would like to remind Your Honours that Tadic was not convicted of the
19 crime of genocide. Furthermore, the Tadic appeals judgement stated that
20 it is still necessary to show intent and that this was shown by the
21 particular circumstances surrounding the JCE.
22 Former Judge Cassese shared his view on foreseeability. He was
23 of the opinion that the foreseeability standard is neither precise nor
24 reliable. It almost introduces a form of strict liability, as it will be
25 for the Prosecution to prove that the participant had knowledge and
1 willing took that risk of a specific fact or circumstance, evincing the
2 likelihood that the other participant might commit a unconcerted crime.
3 Furthermore he stated that:
4 "Clearly, if the Prosecution fails to prove all this, the charge
5 must be dismissed. It would be contrary to the principles of a fair
6 trial to shift the burden of proof and to require the Defence to prove
7 that the accused did not know the relevant facts nor foresee the crime
8 and willingly took risk that it be committed." Again, this is from
9 page 117 of "Proper Limits of Individual Criminal Liability under the
10 Doctrine of JCE," a publication by former Judge Cassese.
11 In his dissenting opinion to the Brdjanin interlocutory appeal
12 decision, it is said:
13 "... the third category of joint criminal enterprise does not
14 dispense with the need to prove intent: What it does is that it provides
15 a mode of proving intent in particular circumstances, namely, by proof of
16 foresight in those circumstances."
17 And again we're talking about Judge Shahabuddeen, paragraphs 4
18 through 5 of his separate opinion.
19 In light of the common understanding and mutual attribution of
20 the conduct of the participants and the particular circumstances
21 surrounding the JCE, the Defence would like to draw Your Honours'
22 attention to Exhibit P4283, a decision by Supreme Commander Karadzic.
23 The decision pertains to Karadzic's attempt to reassign Mladic to a
24 position outside of the Main Staff. This attempt is corroborated by
25 Prosecution Witness General Milovanovic. Your Honours, I would like to
1 quote page 17106 of the transcript, where Milovanovic says:
2 "Karadzic started about speaking renaming the Main Staff into the
3 General Staff. I asked him -- actually, I asked him whether all of those
4 present should be listening, and he said that everybody else should leave
5 except for Krajisnik, and then he said to me, General, we are renaming
6 the Main Staff into the General Staff. General Mladic will be replaced
7 and he will be the special adviser for defence for Republika Srpska and
8 the Republic of Serb Krajina. And I shot back by way of a response
9 saying that I would not be head of that General Staff. Krajisnik added,
10 Radovan, let him be now. This is an initial action on the
11 spur-of-the-moment. As a soldier, he will have to receive his orders.
12 The order did arrive the next day. Again, I refused it even in writing;
13 that is to say, all generals of Republika Srpska refused and signed a
14 petition to the Assembly of Republika Srpska. It was the Assembly that
15 appointed Ratko Mladic as head of the Main Staff, so it is only the
16 Assembly that can relieve him of that duty, not the president."
17 Based on the foregoing, the most reasonable conclusion on the
18 evidence is that there was no common understanding of the type alleged by
19 the Prosecution and the attempt of President Karadzic to reassign Mladic
20 is highly indicative in the circumstances of the alleged JCE that tried
21 to exclude the accused. Our position is that the Prosecution has not
22 proven sufficient evidence to prove otherwise.
23 I think we're at the time for a break. We could take one now
24 before moving to my last comments.
25 JUDGE ORIE: If this would be a suitable moment for you, we'll
1 take the break now.
2 We take a break and we'll resume at 25 minutes past 1.00.
3 --- Recess taken at 1.07 p.m.
4 --- On resuming at 1.26 p.m.
5 JUDGE ORIE: Mr. Ivetic, if you're ready to proceed, please do
7 MR. IVETIC: I am, Your Honours, thank you.
8 I would like to point out to Your Honours other evidence that
9 speaks against any specific genocidal intent on the part of
10 General Mladic. I would direct your attention to the transcript of the
11 16th Assembly Session held on 12 May 1992 in which supreme commander and
12 President Karadzic formulated six strategic goals for the Serbian people.
13 The Prosecution has presented its view that President Karadzic formulated
14 and promoted the development and implementation of SDS and Bosnian Serb
15 governmental policies intended to advance the objective of the joint
16 criminal enterprise and that the six strategic objectives are proof of
17 concerted action within the JCE.
18 Our position is the same as that of the Chamber in the Sikirica
19 case. The Trial Chamber of the Sikirica case found that general
20 political doctrine of the Serb leadership, including the six strategic
21 goals, propagated persecutions in Prijedor directed against the non-Serb
22 community, but found no evidence the general political doctrine carried
23 any genocidal intent. The Stakic and Krajisnik Chambers came to the same
24 conclusion. We argue that the Prosecution has not presented any new
25 evidence to overrule such a conclusion.
1 In addition, per the evidence on the record, General Mladic
2 specifically was opposed to the adoption of the six strategic goals at
3 the Assembly and said:
4 "We have to call upon any man who has bowed his forehead to the
5 ground to embrace these areas and the territory of the state we plan to
6 make. He too has his place with us and next to us ..."
7 And he goes on further to say:
8 "... but that does not mean that Muslims have to be expelled or
9 drowned ..."
10 This fragment clearly shows that he does not share the intent nor
11 common purpose of this alleged third category of joint criminal
13 In this Assembly dated 12 May 1992 in Banja Luka, Mladic clearly
14 states his intent to live together with Bosnian Muslims and repudiates
15 the concept that Muslims have to be expelled or drowned. The absence of
16 his intent, which the Defence would like to stress, is separate from that
17 of other members implicated in the JCE is corroborated by Witness Donia's
18 testimony. During his testimony, Donia emphasised Mladic issued harsh
19 warnings against taking actions stipulated by the Serb political
20 leadership in the 16th Assembly session.
21 JUDGE ORIE: Would you please slow down a bit, Mr. Ivetic.
22 MR. IVETIC: Furthermore, he acknowledged that Mladic made a
23 number of statements expressing his concern that the political leadership
24 was formulating goals that entailed Serbs ruling over areas where no
25 Serbs lived. This is the 22nd August 2013 testimony of Mr. Donia.
1 P2141 dated 25 October 1995, in which the VRS Main Staff security
2 department authorised subordinate units to engage in exchange of Muslim
3 prisoners with the Muslim side for Serb prisoners clearly negates any
4 possibility that Mladic's intent was to destroy the protected group of
5 Bosnian Muslims and Bosnian Croats. Similarly, P2142, dated 16 June 1994
6 and P2143 dated 21 January 1995 also demonstrate that the VRS Main Staff
7 security department authorised negotiations for exchange of Muslim
8 prisoners for Serb prisoners.
9 Furthermore, we have in evidence P8167, dated 20 July 1995,
10 which -- in which it records a meeting between the UN and General Mladic,
11 who clearly conveys his intention to exchange all prisoners in custody of
12 the VRS with the Muslim side for all their prisoners.
13 Your Honours, we have several exhibits pertaining to the fact
14 General Mladic was in favour of a complete cessation of hostilities
15 agreement and a peace agreement. There is Exhibit P2198 dated
16 17 June 1995 which accounts the meeting between General Mladic and
17 General Janvier in which General Mladic says he's in favour of completing
18 the agreement and is willing to do a cease-fire across the whole
19 territory. Similarly, P2050 dated 14 March 1995 records a meeting
20 between Akashi, Mladic, and talks of the other side breaching the
21 cessation of hostilities agreement while the Serb side has adhered to it.
22 In addition, P332, dated 30 May 1992, pertaining to
23 General Mladic's meeting with Colonel Wilson with a purpose of getting
24 the UN to organise a meeting with the BH side to discuss a cease-fire in
25 Sarajevo as the BH side has been refuting such attempts. And lastly, P18
1 dated 12 January 1995, where Mladic specifically agrees to complete the
2 cessation of hostilities agreement with the other two sides.
3 Your Honours, I would like to proceed with addressing the crime
4 of genocide under Count 1 and subsequently under Count 2. We
5 respectfully seek to challenge the Prosecution's evidentiary basis and
6 submit that it has been deficient in meeting the reduced burden of proof
7 set by Rule 98 bis --
8 JUDGE ORIE: Mr. Ivetic, if by any chance you would have the
9 source of the quote of the Banja Luka Assembly Session, then it would
10 assist me. If not, then I would not be surprised if you don't have all
11 the --
12 MR. IVETIC: I'm sure --
13 JUDGE ORIE: -- sources.
14 MR. IVETIC: -- we can get that before we finish today,
15 Your Honour.
16 JUDGE ORIE: Yes.
17 MR. IVETIC: Genocide is punishable under Article 4 of the
18 ICTY Statute and is a well-established part of customary international
19 law. As underlined in many international trials, genocide is distinct
20 from other crimes inasmuch as it embodies a special intent or
21 dolus specialis. This is from the Kayishema judgement, paragraph 498.
22 To sustain a count of genocide, the perpetrator has to possess
23 the required mens rea. Genocidal intent requires an extra element
24 besides the mental element, mirroring the genocidal acts allegedly
25 committed by the accused. The additional required specific genocidal
1 intent consists of three elements: Namely, the intent to destroy the
2 protected group; the intent to destroy the group in whole or in part; and
3 this protected group is either defined by nationality, ethnicity,
4 religion, or race. Previous Trial Chambers have emphasised that intent
5 is a mental factor which is difficult, even impossible, to determine.
6 These presumptions are formed on a case-by-case basis and rely on the
7 evidence put forward during trial. The Akayesu trial judgement paragraph
8 523 through 524.
9 Absent a finding of specific genocidal intent, the acts cannot be
10 tried as genocide but inevitably fall within a different category of
11 international crimes, for instance, a crime against humanity.
12 Absent a confession or direct evidence attesting to the accused's
13 intent, presumptions on intent are formed on a case-by-case basis and are
14 inferred from the material evidence submitted to the Chamber. This is
15 from the Musema trial judgement, paragraph 167. The Defence submits, in
16 line with the arguments regarding the actus reus, that the Prosecution
17 evidence currently supporting inferences of intent of the accused is not
18 sufficient to meet the Rule 98 bis standard.
19 With your leave, Your Honours, I will first turn to the
20 actus reus element that General Mladic is charged with under Count 1 and
21 then turn to the mental elements. Count 1 alleges the commission of
22 genocide in the municipalities of Foca, Kljuc, Kotor Varos, Prijedor,
23 Sanski Most, and Vlasenica; this is in paragraph 37 in the indictment.
24 The indictment holds that a campaign of persecutions included or
25 escalated to conduct manifesting intent to destroy in part the national,
1 ethnical and/or religious groups of Bosnian Muslims and Bosnian Croats.
2 In these seven municipalities, the intent to partially destroy the groups
3 was manifested through the targeting of significant sections of the
4 leadership and a substantial number of its members. This is also
5 paragraph 37.
6 The genocidal acts subsumed in Count 1 are:
7 (A) the killing of Bosnian Muslims and Bosnian Croats; (B) the
8 causing of serious bodily or mental harm to Bosnian Muslims and
9 Bosnian Croats during their confinement in detention facilities; and (C)
10 the detention of Bosnian Muslims and Bosnian Croats under conditions of
11 life calculated to bring about their physical destruction.
12 Your Honours, no evidence has been presented to substantiate a
13 general factual finding of genocide in the municipalities. Demographer
14 and Prosecution expert Tabeau presented evidence which shows that
15 2.6 per cent of Muslims were killed in Bosnia. Tabeau's testimony on
16 18 November 2013 stated that the Bosnian Serbs lost the highest
17 percentage of their population, some -- as opposed to the Bosnian Muslim
18 and Bosnian Croat population and Ms. Tabeau testified that there was in
19 fact only a small difference in losses among the ethnic groups.
20 The Defence is aware that a determination of genocide does not
21 exclusively involve a numerical assessment, but that it is of guidance.
22 We would like to respectfully bring to Your Honours' mind the ICJ
23 judgement concerning the application of the convention on the prevention
24 and punishment of the crime of genocide in the case of
25 Bosnia and Herzegovina versus Serbia and Montenegro, 26 February 2007,
1 which was not satisfied beyond reasonable doubt that the killings of
2 members of the protected group in 1992 were carried out with genocidal
3 intent. ICJ judgements are not binding on the Trial Chamber but are of
4 an authoritative nature.
5 Your Honours, before this Tribunal several cases have examined
6 the occurrence of genocide as alleged in the municipalities; none of them
7 have established it. The Trial Chamber in Stakic found no special
8 genocidal intent to destroy the protected group of Bosnian Muslims or
9 Bosnian Croats. The Trial Chamber in Stakic was not satisfied that
10 anyone had the special intent to destroy the Muslims or Croats as a group
11 and they specifically discussed the strategic goals and found that they
12 called for separation, not destruction. The Stakic Appeals Chamber
13 upheld the acquittal of genocide and ascertained that there was
14 insufficient evidence supporting the proposition the Serb leadership
15 developed a genocidal campaign. The Trial Chamber of the Sikirica case
16 found that general political doctrine of the Serb leadership propagated
17 persecutions, but found no evidence that general political doctrine
18 carried any genocidal intent. The Defence again likes to state our
19 position that the Prosecution has not presented any new evidence in this
20 case that would result in any different conclusion than prior cases.
21 Furthermore, the Chamber recognised in Stakic that the Serbs had
22 the structures in place to commit genocide if they intended to do so.
23 The Stakic Trial Chamber acknowledged that while approximately 23.000
24 people were registered as having passed through Trnopolje camp, the total
25 number of killings in Prijedor probably did not exceed 3.000.
1 Similarly, Your Honours, the Tribunal had before it the case of
2 Krajisnik, who was accused of committing genocide on a national level and
3 included the seven municipalities contained in Count 1. The
4 Krajisnik Chamber found that no genocide occurred and could not establish
5 the presence of genocidal intent. The Appeals Chamber of Brdjanin upheld
6 their acquittal of genocide as the Chamber found no evidence of the
7 intent to destroy the protected group. Furthermore, the Brdjanin Chamber
8 specifically mentioned the absence of an escalation to genocide in the
9 ARK after examining the killings at Koricanske Stijene, killings and
10 treatment of prisoners at Keraterm, Omarska, Trnopolje, and Prijedor,
11 Kljuc, and Sanski Most.
12 Your Honours, before I continue, I can report that the
13 16th Assembly Session is in evidence at P431. The quote of
14 General Mladic is to be found at page 39 of the English translation as
15 the document is uploaded in e-court.
16 JUDGE ORIE: Thank you, Mr. Ivetic.
17 MR. IVETIC: If Your Honours would allow me to make reference to
18 the genocide in Rwanda, where after repetitively inquiring into the
19 existence of genocide in Rwanda, the events were referred to as common
20 knowledge in further trials after 2006. The Karemera case confirmed that
21 the societal context in which the accused operated has direct bearing on
22 the charges brought against him. This is paragraph 36 of the decision on
23 the Prosecutor's interlocutory appeal on the decision of judicial notice,
24 June 16th, 2006.
25 Notwithstanding that sole reference on a general finding of
1 genocide would go contrary to individual criminal responsibility and
2 would lead to adjudicating guilt by association. Instead, evidence is
3 viewed in light of the larger societal context in which the alleged
4 actions took place. The position of the Defence is that there has not
5 been proven genocide occurred in the municipalities between 31 March 1992
6 and 31 December 1992 and that the Prosecution has not submitted evidence
7 to the contrary. The evidence should be viewed in light of the larger
8 societal context in which the alleged actions took place. In absence of
9 direct evidence that the physical perpetrators of the crimes alleged to
10 have been committed in the municipalities carried out these crimes with
11 genocidal intent, the Chamber can infer intent. While the Chamber has
12 heard evidence of culpable acts directed against Bosnian Muslims and
13 Bosnian Croats in the municipalities and the repetition of derogatory
14 language; however, the nature, scale, and context of these acts, be it
15 all -- be it in all the municipalities covered by the indictment or the
16 seven municipalities in which genocide is alleged, do not reach the level
17 from which a reasonable trier of fact can infer that they were committed
18 with genocidal intent.
19 The Karadzic Appeals Chamber remarked that forcible transfer does
20 not constitute a genocidal act in and of itself, but where attended by
21 such circumstances as to lead to the death of the whole or part of the
22 displaced population, it may be considered an underlying offence that
23 causes serious bodily or mental harm. This is also emphasised by the
24 Krstic and Popovic Chambers.
25 Your Honours, I would like to remind you that bodily harm or
1 mental harm imposed to fall within the crime of genocide must be
2 committed with the intent to destroy the protected group as such. The
3 Trial Chamber in the Kayishema case established that an accused cannot be
4 held liable for the mental injury inflicted upon victims if it is not
5 inflicted whilst harbouring specific genocidal intent to destroy the
6 protected group, that's paragraph 112 of the Kayishema trial judgement.
7 By deciding so, the ICTR set precedent that restricts the crime
8 of genocide and consequently puts an elevated burden of proof on the
9 Prosecution. We submit the Prosecution has not presented sufficient
10 evidence to prove that General Mladic harboured specific genocidal intent
11 and therefore he is entitled to a dismissal of the charge in relation to
12 inflicting mental harm.
13 The Prosecution asserts that the common purpose of the JCE was
14 implemented through the various VRS directives. Again, we would like to
15 stress the testimony of General Milovanovic pertaining to directive 7, in
16 which General Mladic left two things out that were authorised by
17 President Karadzic in his own directive 7.1. The first is the
18 controversial sentence about unbearable conditions needing to be created
19 for the civilian population of Zepa and Srebrenica. The second referring
20 to the separation of Srebrenica and Zepa or from Zepa by force.
21 Therefore, General Mladic could not have been said to share the same
22 common purpose, let alone the common purpose to commit genocide.
23 The indictment charges General Mladic with crimes committed
24 against the Bosnian Muslims in Srebrenica commencing the days preceding
25 11 July 1995 and continuing until 1 November 1995. General Mladic is
1 alleged to have participated in a joint criminal enterprise to eliminate
2 the Bosnian Muslims in Srebrenica by killing the men and boys of
3 Srebrenica and forcibly removing the women, young children, and elderly,
4 amounting to the commission of the crime of genocide. The key proof that
5 the Prosecution relies upon as to General Mladic's intent pertaining to
6 the events in Srebrenica is witness Kingori. However, this evidence is
7 incapable of belief, due to the fact that Kingori's other evidence as to
8 the Srebrenica enclave is entirely at odds with members of UNPROFOR.
9 Whereas Kingori testified that the evacuation of civilians was staged by
10 the VRS, General Nicolai confirmed - of the United Nations and the
11 Dutch Ministry of Defence - agreed the evacuation was a humanitarian
12 necessity and instructed Colonel Karremans to ask Mladic to permit it
13 during his first meeting at Hotel Fontana. This is transcript page 10653
14 through 10654. Thus, the actions relating to deportation cannot be
15 attributed to General Mladic, not unless the United Nations and
16 Dutch Ministry of Defence themselves are the co-perpetrators of the same.
17 Furthermore, it should be recalled that whereas Kingori claimed that the
18 Bosnian Muslims in Srebrenica were completely demilitarised, this account
19 is at odds with DutchBat witnesses who testified, including Eelco Koster
20 at transcript page 1266 through 1267 and 1278 to 1279 and also to
21 evidence of armed Bosnian Muslims taking UN members hostages,
22 Witness van Duijn at transcript page 6281 and Witness Koster at
23 transcript page 1240.
24 This evidence shows that the Bosnian Muslims in Srebrenica were
25 not demilitarised and even threatened DutchBat themselves. Thus,
1 Kingori's testimony is not one that is capable of belief.
2 Prosecution expert, Richard Butler, confirmed, as we said
3 earlier, that with respect to July 1995 in Srebrenica, his research had
4 not come across any document or order from General Mladic specifically
5 ordering the execution of prisoners; this is transcript page 16573 to
6 16574. Your Honours, the Defence would like to remind that the
7 Prosecution in its opening statement confirmed and conceded that the
8 military action of the VRS against Srebrenica to stop Armija BiH raids
9 constituted a legitimate military action. This can be found at
10 transcript page 486. Later Prosecution expert witness Richard Butler
11 confirmed this assessment. Likewise, Butler confirmed that VRS combat
12 operations against the Bosnian Muslim column leaving Susnjari was
13 likewise legitimate combat. This can be found at transcript page 16653.
14 Butler states that:
15 "I don't see any particular conflict with respect to the column
16 retreating from Srebrenica and fighting its way to friendly lines."
17 He goes on to state:
18 "As I've testified many times before, the column as constituted,
19 despite the fact that the mixed character of the column, in my view the
20 column constituted a legitimate military target which meant it was
21 subject to attack by ambush."
22 In addition, we would like to submit that there is no evidence of
23 General Mladic's presence at any of the alleged execution sites, save for
24 the testimony of RM255, which we have already addressed and which even
25 the Prosecution has said they do not intend for us to rely upon. And
1 again that's at transcript page 1179.
2 Further, the evidence is clear and the Prosecution stipulated to
3 the fact that General Mladic has left the Srebrenica area and left the
4 VRS zone of operations as of 14 July 1995. Although the precise time of
5 his return is still in dispute between the parties, it -- from the
6 evidence it is clear the killings that took place took place while
7 General Mladic was not present. The Prosecution has not presented
8 evidence that General Mladic had any capabilities of secure
9 communications during this time-period, either with the VRS units or
10 other alleged JCE members, so as to permit his knowledge of or
11 participation in the killings.
12 The Karadzic Appeals Chamber in its 98 bis decision in
13 reinstating the genocide count for the municipalities focused on the
14 detention facilities being used to subject conditions of life meant to
15 bring about physical destruction. In the Srebrenica context, we do not
16 have such evidence. To the contrary, we have presented evidence that
17 prisoner exchanges were planned. We elaborated on Exhibit P2141, dated
18 25 October 1995, in which the VRS Main Staff security department
19 authorises subordinates to engage in exchange of Muslim prisoners.
20 Similarly, Exhibit P2142, dated 16 June 1994, and Exhibit P2143,
21 dated 21 January 1995, which also demonstrate the intent to exchange
22 Muslim prisoners for Serb prisoners. And then again the 20 July 1995,
23 P816, where General Mladic conveys his intention to exchange all
24 prisoners for all prisoners.
25 I would like to remind Your Honours also in relation to the
1 standard set forth in the Kayishema case that an accused cannot be held
2 liable for mental injury inflicted upon victims if it is not inflicted
3 whilst harbouring specific genocidal intent to destroy the protected
4 group, that on 14 July 1995 General Mladic's meeting with General Smith
5 of UNPROFOR and agrees to permit the International Red Cross to come
6 examine prisoners from Srebrenica to assure they are kept in accord with
7 the Geneva Conventions. This is D410. This evidence flies in the face
8 of the assumption that General Mladic's alleged intent was to inflict
9 bodily and mental harm to the detainees with the genocidal intent.
10 Further, as early as April 1994 we have evidence of
11 General Mladic meeting with General Wahlgren of the UN and offering the
12 following three proposals for Srebrenica, this is P2469:
13 "(A) the UN could send as many empty trucks as it wanted into
14 Srebrenica to take out Muslims or.
15 "(B) if the Muslim commander in Srebrenica (Naser Oric) does not
16 allow his people to leave in this manner, the Serb side could open a
17 corridor allowing civilians to cross into Serb-held territory (on foot)
18 to a place where they can board buses; or.
19 "(C) as civilians were not the target of the BH Serb army, the
20 Muslims could lay down their arms and let their people stay in
21 Srebrenica. The Muslims in Srebrenica, he said, should 'surrender to my
22 forces or yours. However, according to international law they should
23 surrender to ours.'
24 "He asked that this proposal be transmitted to the other side."
25 The Defence would like to also turn to statements made by
1 General Mladic at Hotel Fontana which must be taken in the context of his
2 statements a year prior as we just evidenced in the meeting with
3 General Wahlgren.
4 Taken in context with these prior statements, it is clear that
5 General Mladic's focus is the armed 5.000 or so fighters of Naser Oric
6 that he thinks are still with the civilians and that if disarmed no one
7 has to leave Srebrenica. Such a benign interpretation of his words is in
8 line with his statements to the crowd at Potocari, which can be seen at
9 P1147, page 55 through 56, and this is General Mladic talking:
10 "Well, I have received the representatives of this population
11 here, today, and they have asked me to enable the civilians who want to
12 leave this territory to pass on the territory controlled by Muslims and
13 Croats. Our army wasn't aiming to fight the civilians or the UNPROFOR
14 forces. We have organised the transport for them, the food, the water,
15 the medicine. In the first round today, we will evacuate women,
16 children, and the old, as well as other people who want to leave this
17 combat area on their own free will, without any kind of force.
18 "Yes, Srebrenica is free, but as I said to their representatives
19 they should all ... there are still groups ... which are fighting, there
20 is still resistance. I also ordered that their soldiers could join us
21 freely and surrender their weapons and they accepted it. I hope at least
22 this part of the problem can be solved by us without civilians being hurt
23 and these women and children and the old ... it's not their fault if
24 Alija and his policy seduced them."
25 Furthermore, we would like to bring to Your Honours' attention
1 the testimony of RM253 regarding another speech attributed to
2 General Mladic at Sandici. The speech clearly shows that
3 General Mladic's intent is not geared towards the destruction of the
4 protected group of Bosnian Muslims and Bosnian Croats, but rather is
5 aimed towards prisoner exchanges because he says everyone will be
6 exchanged; this is P1547 under seal at paragraph 20.
7 Further, key Prosecution witness Erdemovic testified at
8 transcript page 13779 that he never heard any talk or any indicators that
9 the objective of the VRS was to destroy the protected group of Bosniak
10 people. We submit that the Prosecution has not proven sufficient
11 evidence to the contrary.
12 On the matter of genocidal intent for purposes of this 98 bis
13 hearing, the Defence would like to conclude that it is aware that the
14 Courts entertain freedom of assessment of evidence. And we would like to
15 recall the Jelisic case in which the accused publicly displayed his
16 intent to destroy the Muslim group in whole or in part through making
17 statements as feeling the need to kill 20 to 30 persons before being able
18 to drink his coffee each morning. However, he also granted Muslim
19 detainees amnesty, a notorious example being a Muslim man who was forced
20 to engage in Russian roulette with Mr. Jelisic and who was subsequently
21 released. In weighing the evidence the Court put significant emphasis on
22 the latter exculpatory evidence which lead to finding that due to the
23 uncertainty surrounding his intent to destroy the group in whole or in
24 part, Mr. Jelesic's killings were found to be arbitrary. In that
25 instance the Court abided by in dubio pro reo.
1 In our instant case, there has not been any proof of any such
2 nefarious activities by General Mladic.
3 Furthermore, from the Perisic Appeals Chamber, it can be deduced
4 that when the evidentiary base comprises one or more contradictory
5 testimonies, or other forms of inconsistent evidence, it is not
6 satisfactory that the Chamber merely acknowledges its existence. An
7 analysis of such evidence together with a reckoning as to why it was or
8 was not relied upon must be given as well. In light of all the arguments
9 presented, the Defence submits that General Ratko Mladic is entitled to a
10 dismissal of the charge relating to him entertaining genocidal intent for
11 the reason that the Prosecution has not submitted sufficient evidence to
12 support the charges.
13 Your Honours, that concludes my presentation. On behalf of
14 General Mladic and the rest of the Defence team, I thank you for
15 listening to our submissions.
16 JUDGE ORIE: Thank you, Mr. Ivetic.
17 Mr. Groome, you were scheduled to start tomorrow. I think it
18 would be wiser to wait until tomorrow so that you have an opportunity to
19 better prepare.
20 MR. GROOME: Thank you, Your Honour, yes.
21 JUDGE ORIE: Then before we adjourn, Mr. Ivetic, I asked for the
22 source of the quote which was then given to me page 39 of the
23 Assembly Session in Banja Luka. Perhaps -- you quoted as follows,
24 referring to General Mladic specifically opposing the adoption of the six
25 strategic goals at the Assembly. And then you quoted him as saying:
1 "We have to call upon any man who has bowed his forehead to the
2 ground to embrace these areas and the territory of the state we plan to
3 make. He too has his place with us and next to us."
4 What I found on page 39 is a quote, and I'm focusing on
5 "forehead" because ...
6 "We invite anyone whose forehead has touched this here, but first
7 a Serb, I will not assign anyone else to a command duty. But I will
8 assign someone no matter who he is."
9 That is the quote I found on page 39 of the English translation.
10 You then continued saying:
11 "And he goes on further to say:
12 'But that does not mean Muslims have to be expelled or drowned.'"
13 First of all, I had some difficulties in combining the first few
14 lines with this then follow-up, which seems to be a bit inconsistent.
15 And therefore I wondered -- first of all, I did not find anything on
16 page 39 in the -- in close connection to the first quote, saying that it
17 does not mean that Muslims have to be expelled or drowned. But I was
18 wondering whether you were working from a different English translation
19 and perhaps it would be wise, since you draw our attention to the fact
20 what this fragment shows, that you would verify whether there was any
21 issue about the English version of the Banja Luka Assembly Session.
22 MR. IVETIC: I will do that, Your Honour. I was working off a
23 snap-shot of a portion of the PDF of a translation. I don't know -- I'll
24 have to check to see if that's the one that was in e-court. I thought it
25 was and I will report back so that Mr. Groome knows before he begins
1 tomorrow --
2 JUDGE ORIE: Yes.
3 MR. IVETIC: -- what the particular -- what exactly is the
4 reference if it is something that is in the --
5 JUDGE ORIE: Well, at least it's a page where the word "forehead"
6 appears, and from what I tried to search I find it nowhere in the
7 transcript. But it seems that Mr. Mladic would like to consult.
8 MR. IVETIC: If I may consult.
9 JUDGE ORIE: Yes, please do so.
10 [Defence counsel and accused confer]
11 JUDGE ORIE: Mr. Ivetic.
12 MR. IVETIC: Yes. My client also remembers the words in -- says
13 it's in relation to the SFRY. I will of course check the official
14 exhibit as it is entered into the record and will report back informally
15 to the Chamber and the other side via e-mail so they have time to
16 prepare. And then I'm prepared tomorrow to on the record set forth what
17 the results are of my inquiry.
18 JUDGE ORIE: Yes, because if there's any translation issue, we
19 would rather know now --
20 MR. IVETIC: Absolutely, absolutely.
21 JUDGE ORIE: -- then at any later point in time.
22 Nothing else at this moment. We adjourn for the day and we'll
23 hear the Prosecution's submissions tomorrow, the 18th of March, at 9.30
24 in the morning in this same courtroom, I.
25 --- Whereupon the hearing adjourned at 2.12 p.m.,
1 to be reconvened on Tuesday, the 18th day of
2 March, 2014, at 9.30 a.m.